CCPR/C/29/D/172/1984

u. ~"t~lIll~~l:Inic.!".tlu..'.~ ~tl._1I2LJ...:t)J!!,_J;-!._~.__~._ !!.~:oe-,,~_~~_ the t!e_th~_~_l_li..!.'.(tij (Views at10pted un 9 April l'JQ1_tit the twenty-ninth det£tdo!!) SUllll\lH.od by, tie W. M. Ul'OCkB (l'ep....tHwllt:uil by Mat'ie-l':mmie Uleput.l'ttt.en) Alleuod v let 1nlJ tho tiuthOl' Htato pur ty concorned r t,ho Net.hor landa noto of communicatlon, 1 .Junc 1904 (doto of' i.niH.1l1 InH.Ul') Uato of docislon on admhJaibll1tyr 250ctolHH HQr) Tho Human iHqhta Commlttoo oatabUahod umlt}l'IHt.lelo 28 of tho Illtorr atlol\til Covonant on Civil and Political IHghta, Moat inq cm 9 Apr 11 1907, "ltving concludod Hu conoldoration of cOIllll\unlc:ution No. 172/lttU4 Iiuhmittod t.o t.h{\ COlI\m1t:too hy 9. W. M. nroeko undor the Opt.ional Protocol t.o tho lntornotional Covonllnt on Clvil and Politicol 1Htlht.n, lIavil\lJ tllkon into account all writton 1llfol'mution IlHado avai1ab10 to it by t'hn outhor of thn communicution und hy thu Htnt.o pak't'y l:onuuoiOd,

1. u)OptH tho follow!n(" Vl1':WB UNUI'~H 1\R'l'IC1.F. S, PAltAGUAPII 4, OIl 'i'lll': OP'l'IONAI. PM01'OCOL 1. "hn Ilut.hor 01' thn cOI1\Ulunic:at ion (initial lottol' tllltod I,1uno 19114 r"'tt uuhuu4lHmt lolt'orn dlAtocl 11 UOGOmOOl' 1984, S July)lHtt~,\n(t 10 .'"IlU l(Ulb) in Mrtl. n. W. M. nrookn, u Nothor1unl1n citizofl born on 14 M{ll'C~h ttt')l lUlIl llvinq 1n tllo Nothol'1lintln. HI\(! ill l:OPU'fIlHltO(l hy Inqnl eOllllfltll. '),.1 Mrn. Ih(li'kn, who wau ",un'Lod at thn tin\(! whon t'.lw cHIJputn ill qlltll4tioll IHtHJU (nht' hall nincl' llivort:ud ftnd not lIlIlUarI'1ud), wan ul1ll'loyod /1tl 11 tlurlitt ('l'Olll '7 AUtfllllt l'nZ to 1 1"~,hl'l1ul'Y 1IJ79, whml uhu wan tILumiufl'ltl ('ot: l'Uliuonll or <litllahility. Hlao hutl hocomo 111 1n 1~'7'1, lInd hom t:hat: tim.} Iiltw t)t,.Onof1t:ut1 hum tho Nothur111l\lln Ilociul tlClclaity HYHlolll until 1 .flltlo 19110 (an l'(!lfl}t'lltl lHulih11ity fillll tltl l'O'f/U'clfl utwlIlplllymnnt), WtWIl lIllompluYlllC'll1 pllymuntll W(l~'&) tOl'mi\ltltetl ill ftccul'cltu\Cu with Noth~Hlalldn l~w.

2. '}, "h"u. nl'unkn contoototl thn .1ocil1ion ut' tho r010Vltll\ NothorlalH1fJ ~ut:hl)dt:itH. L) dincontll1un ullomploymont pl.lYl\lontu to hOl' and in the cuurtlo of' uxh""ntlnq ttumcullle t'tlI11od1u!I invokod l.lrttcl« lfi of thn tnt.orlltltiunl.ll Covonant on Civil /tllt1 l'oltt,lt~"l IHllhlll, cllliminlf that thn ruluvtlllt: Not:hol'lantln luqal pl'tlVlulonn WOl'" cUlltk'luy to thn r iqht. to uquu 1t t,y hoforo t.ho l.lw and OqUli 1 protucl ion of tho law wi thout dincdl1linat1on CfIlU[lIntooo by IHtic10 26 of tho Inhn'nutloflol Covenollt on Civil tuu) Po 11 t lea 1 Hill h t Cl. I.fHflJ 1 CC)ll1lno 1 tluhm i t n t htt t <'tomoH t 1c l'tlllu~l1 Oil wn....1 ux t\tlUO t: uc1 011 :lfl Novemhor PHn, whew thn npproprillLo adnlll1int.rtltivo llllthol'1t.y, tho CQlltl'lll "uartl of ApP~H,l. conflnnod Il dm:iulon of " lowtH' l1Iuni\:lpu1 ~l\thorHy not· to t:ontltHIO ullomploymnnt paymonttl to Mr n. Bnlt.,kn. 2.3 Mrs. aroeks claims that, under existing law (Unemployment Be~efits Act (WWV), sect. 13, lJubsect. 1 (1), and Decree No. 61 452/IIIa of 5 Apdl 1976, to qive effect to sect. 13, Qubsect. 1 (1), of the Unemployment BenefitA Act) an unacceptable distinction has teen made on the grounds of sex and statue. Shq b~D(Hl her claim on the following; if Bhe were a man, married or unmarried, the law in c;uostion would not deprive her of unemployment benefits. Because she ia a woman, and was married at the time in question, the law excludes her from contir.ued unemployment benefits. This, she claims, makeo her a victim of a violation of article 26 of the Covenant 0,,\ the grounds of se),; and status. She 01ail1l9 that article 26 of the International Covenant on Civil and Political Ri~~ta was meant to give prot.ection to individuals beyond the specific civll and political rights enumerate~ in the Covenant. 2.4 The author states that she

1. s not submitted the matter to other inte:,:nutional procedures. 3. By its decision of 26 October 1984, the Human Rights Committee tranBmitted the cOIIVllunicatiofJ, under rule 91 of the provisional rulen of procedure, to the Statn party c:oncernetl, requesting information and obser.vations reltlvllnt to the question of admissibility of the cori\mUn~ciltion. 4.1 In its submission dahd 29 May 1<;85 the State party underlined, _!!.!~_~!._~lJ.i!, thatz (a) "The principle that el~mentB of discrimination in the ~eallzntlo~ of ~hd right to social security are to ~ eliminated is embodiec-l in article Cl in conjunction with articles 2 and 3 of the Intchnational;';ovenant on Econo.oic, Social !nd Cultural Rights, (b) "rhe Government of the Kingdom of thE' Netherlands has ",ccepted to implement tllib principle under the terms of the International Covonant (.In Economic, Social and Cultural Rights. Under th~me terms, States part iea have undertaken to take steps to the maximum of their available resources with a view to achiev~lul progressively thp. full realization ()f the dqht9 recoqni1.ed in thi.lt Covellimt (a r to I., pa r a• 1), (c) "'1'he process of gradual realb!:/-,t ion to the ma,cimull1 of llvai.lablp rmIOlH"Ct'S is well on its way in the Netherlands. Remlllining elements of discriminat.iol' in thl' realization of the rights are heinq and will h«! qn~dullllly eliminated, (d) "The Internntional Covenant on Rconomic, SociL-l and Cult.ural IHt:'I'to haa established ita own system for int.ernat ional control of the way in wh ieh StatefJ putiee are fuHi llinq their obligations, To this end States parties havt~ undertaken to submit to the Economic and Social CoulH:ll reports on th .nOtlDU1'NJ they have adopted and the progress they cue makinq. The Gover:nnmnt of HIt., Kinljdolll of the Netherlands to this end submHted its first report in 198.1." 4.2 The State party then posed the question whether the way in which ttw Netherlands was fUlfilling its obligations under article 9 in con-junction with articles 2 and 3 of the International Covenant on Economic, Social a"d Cultural Rights could become, by way of cut icle 26 of the International C()Vl~nailt on Cl vU and Political Rights, ttw object of an examinatioll by thp lIuman Riqhtfl l'olrlllittee. --140- The State party submitted thl".t the qUOfJtiofl Wd9 relevant: for tht" decision whethor the ~om~unication W8ft admiBBi~lc.

4.) 1'he State party streoRod that it would greatly benefit tram l'ecelvinq an :::lll.::\.rer ::~OI1l tt"e Human Rights Committee to t.he qU6 :i\Jn l1\entionad in paragr.,ph 4.2 a o'U~. "Since such an answer «ould h,I~(lly 00 given without goinq into ono aspect. the mer Ha of the case - Le. the quasH".>n of the ~cope of article 26 of tho .ter-national Covenant on Civil and Political Riqhta

- tho Government. ~-oult't LtJSpectfUl1.y request the Committee to join· the quost".1on of adltl1aGibillty to un examinadon of the merits of the c8se." 4.4 In case the Committoo did not grant that reqUGRt and declared the communication udmiaaihle, the State party reserved the right t.o submit, in the course of ':he proceedings, obnervationl3 which might have all offm~t on the question of admissibility. 4.5 The Stotte party alBa indlcateit that a change of leq i!Jlation had been adopted recently in the N~therlande, eliminating article 13, pa(a~raph 1, of mlV, which waa the 3ubjf~t of tne author's claim. This is the Ar't . 29 April lQaS, S 230, h3vinq J retroactive effect to 23 December 1984. 4.6 'l'he State Pl.'ll'ty conf irmed that the author had oxhauoted dOll109t: ie remoiHC'f.). 5.1 In a memorandu!fl dated ., July 1981), the 8uthol' comment.eO on the State party's submission under rule 91. The main issues dealt with in the ~omnmntB are oet out in paragraphs

5. ~ to 5.10 below. 5.2 Firstly, the juthor stated that in the preambles to the Internatlonal Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Polit1cal Riqht'3 an explicit. connection,,,aB made between an individual' 8 oxercifle of hhl civil and political dghtB and hiA economic, social and cultural riqhts. The fact that thoue differont k1nds of rlqhtn ha~ been incorporated into two rHtferent covenantn did not detract from their int.erdependence. It waR striking, the author submitted, that in the Intf:lrtUltional Covenant on Civil and Pol1tical Hiqhta, apart from hI,Hth.:l.. 26, t.here wore spcocUic l'ctoroncufJ on numorouo OGCllHion9 to thl! principl(l of nlIlMlity OY lIon-dillcrimirllltion. Hho liRt.od them nu followlJ 1 article 11 articlp. 141 article 23J earaqraph 4¥ mm-diRer iminat ion w1 tit l'efermwc to the r iqhta HICoqnized i.n the Covenant, nOI1-'diAcr iminat ion on th~ grounds of Rex wi th reference to tho r iqhta recoqni zed in t.he Cl'Venl'mt. J f'qual riqhta of opousea, equal riqhta of children to protectivo measures, flqua1 :' iqht to vote and aqua1 Ilcce8S to qovernment nervlce. -141- ~.] Further, tho author stated ttlat article 26 of the Covev~nt was explicitly not eonfinod to equal treatment with roference to oertai~ rights, but etipulato~ a goneral principle of equality. It was even regarded aa of suoh irn~rtanoe thftt undet tu:ticle 4, paragraph 1, of the Covenant, in a time oC llUbUc emorqol\cy, the luohibit1<.m oC discrimination on the grounds of raca, culour, sex, roligion 01: 800ial origin must be obsorved. In ottler w' rde, ovon in tinlO of.' public emergoncy, the equal tr.eatment of men and women should remain intaot. In tho proceduru to appl'ove th., Covenant. it had been afl8umod by tht' Netherlanda legislative authority, aB tho Netherlands Goverllment wrote in the explanatory memorandum to the nill of. Approval, that -the provision of article 26 iG also applicable to areas otherwiou not covorod by the Covonant". T~"t (undisputed) oOllcluaion was based on tho difference in formulation between article 2, paragraph 1, of the Covonant ancl of article 14 of tho European Convention on Human Rights on tho ono hand and article 26 of the Covenant on the ot~or. 5.4 'rho auttlor S:QCalled that duI:' inl} the diacuos101\ by th(! Human Rlqhts Committoe, at ita fourteenth 06s9ion, of the Netherlands raport aubmittod in complianco with ul:t1clo 40 o~ the Covenant (CCPR/C/10/Add.3, CCPR/C/SR.321, S~.32:r:, 8R.325, SR.326), it had beon a08umod ~..1 the Net~"rlanda Government that articlo 26 of the Covenant also appUed iu the field of cconom1l1, social and cultural riqhta. Mt'. Oide Kalter had stated, 0" behalf of the NQthorlando Governmont, that by virtue of national, constitutional l.4w "direct application of article 26 in tho area of /:)ocial, economic and cultura:" riqhts depended on the character of tho l·oqulat".lons or policy for which that direct application wan requested" (aoe CCPR/C/SH.325, parll. 50). In othor worde, in his opinion, article 26 of the Covenant was uppl1cablo to those riqhts and the ()nly t'Ol~VUI:t question in terms of intornal, constitutional luw ill thc Notherlanda (oect·f:l. 93 and 94 ot: the Constitution) WUfJ whether ill ouch instanceo arti<:le 26 W4') oolf-cxQcutlnq and could be applied by tho cOllrts. He had regarded it aa liJolf-Qvi()ent that the :~etheJ:landll in ita loqislation, among othor thinqo, was bound b\' article 26 of tho Covonant. HIn that connection he (Mr. Oldo Killter ] noted that tho Governmont of the Nother lallda waA currenCly analys; nq national .1eqialation co.""erninq discrimination on qround9 of 90)(or r~co". In tho oboervationo of the Stbto party in the prouent cao~, tho author ad<lu, this hot pol nt ia conf irmod. ~.I) '1'ho author t!urthol" otatetl that in vadc. 19 national cmmtltutional systQmu of countdeu which havo ucco"jod to the Covenant, qenorl1l1y CO'll\ulutotl pl'1nclpl<Hl of equality could bo found which '.IIoro doo reqardod ao beinq applicable in the flold of economic, social a\ld cultural riqhta. ThUG, in the Nothotlando Conntitutlon, partly inspircd, tho authur SUbmitted, by artlcl~ 26 of the Covenant, a gonerally formulat.ed pt'ohihition of diucriminatioll (soct. t) was laid down Which was lrrot'utably rugarded in tho Notherlands QS hoing applicable to tlconomlc, Docial And cultural rit;fhbl ua welL The only rOllson, sho submitted, why the pt'CHont loau\,) had not heon oottled at a national lovel by virtue of: oectiotl 1 of the ConAtit.ltlon wan bocauso tho courts were forbidddll to teat 10qi01atlon, Ruch aa that beinq doalt with currently, aqainBt the COllutitution (EJoct. 120 or the Constitution). '1'ho courts, she Iltatod, wore allowed to toat legislation aqainnt Be1f-ei'ocutinq pl'oviaiono or international cOllvention9. 5,6 'rho author aubmitled thnt judicial practice in the Nethorll1r .11 hOl' heen cOl\niBtent i~ npplyint;f article 26 of the Covenant also in cal:1OI:1 whllro (~('J:1omiG, Aocial dnd cult.ural r: lqht.A had boon at Btoke, for example! -142-, (~) Afdel1fl(J Rechtspl'.Uik van Cie Raad van ~tate (Judicial lHvision of the Council of fltate), 29· .-1981 G881 l 141-442. 'I'hiu case involved diacr.irninatlon on the 9roun(~s 01' sex witH referenoe to houuinq. An 4ppea~ undo..- ardcle 26 of the Covunant in conjunotion with article 11. paraqr~ph 1, of tho International Covenant on Economio, Social ana Cultural llights waa founded, (b) GerechtRhof'a GrllvGnhaqe (Court of Appeal at the Haque), 17 June 1982 NJ 1983, 145 appendix 3, Again with regard to houaln~; an appoal waR made under artic~e 26 of the Covonant and wao granted. (c) Central0 Raad van Doroep (Contral Hoard of A~.ll '1), 1 Novomhel" 1983, NJCM-Bullot!n. (d) Centrale Raad van Boroep (Central Doard of Appoal), 1 November 1983, NJCM-llulle=in 9-1 (1984) apponcUx 4. In thia ca8e, which conlltitut"l8 the bauls for tho ootition to the Human Righte Committee, the Central Board of Appeal conoidered "that article 26 iD not applicable only to the civil and political riqhtlJ which are rQcoqnhod by th-! Covenant". The appot\l undor art 1elo 26 wan CJubooquontly reject-od for othor reaoono. (0) Hoard of APP(Hl1, Gnminqon, 2 Muy 1901), req, No, AAW 181-109'; Ilt')pondix 5. On the basis of uticle 26 of the Covonant among other. thinqlJ a dincriminatory provinion in the Gonorol niRablomont ~HnofitB Act WAS dnclncod null and void. ~_7 The author further aubmittod that th~ q~ootion of oqual traatmon~ in lho field of economic, Bocial dud cultural r iqhtB WIlD not fundamentally d\ ffor.~nt from thf.' problom of oquali t't wi th reqard to fu adorn to exproaa om}' R opinion ()~ the fo:eedom of Iloo,-chtion, in other wordu with req/Hd to civil anrl political rlqh\'.l!>. 1't~ rQct WllS, shu lUqUO<'l, that in both casos it. wau not a quostion of thu lovol at whi"';~1 Docial security hut' boen oot Ol' the dogroe to '"hieh hoodOo'" of opinion wao ljuara"teod, but pur:ely and !limply wheth",r t1quul ~.r9atmont or: the prohlb'~t ion of dlocriminlltlon waR reopoetod. 'rho lovol of: uncial af)eurity did not coroo within the scope of tho Intornational Covonant Ofl Clvil and l>ol1tical Riqhl1.1 nor WClO it relevant in a ca~e of unequal treatment. 'l'ho ollly rQIUvDnt quoflltinn, 8~W flubmi tt0cl, wae whothor unequal tl'oatmont: Wtlfl comp"t ill1e Wl ch art. ic 10 26 of t'.h.., Covonant. 1\ oontl'Qry interprotatlon of article 26, tho auth<..'l'arqued, would turn that article illto n complotely Dupurfluoull pro'"ininn, for tholl it. woulCt not dl.i't'onl' {corn art.icle 2, pluaqrl1ph 1, of thp Covol\ant. Conllequently, oho l-mul1\lUed, ouch an interpratlltion would be lncompatiblo with th~ text, of' ll1'ticl0 26 of tho ~oven"nt and with the objoct and puqX)OO of tho COVnJWI\t. OR laid clown in 3rt le 10 26 \,(the- pr ellmblo. 1).8 1'ho author recalled that ill its obflorvllt1ono tho Btate party had put (ol'wllrd the quoation whother the way in which the Nethurlanda wau mOtltinq its commitlOOnl8 undor thu International Covenant ()n Rcoflomlc, So~~~l and Cultural Riqhts (via article 26 ::If tho Inh,rnational Cov(!nant on Civ~l and Political Riqhts), might: be)udqo<'l by the Human RightB Committee. The 4,Hwt.ion, she fJuhnlitted, was baaed on 11 wronq point of cleplH tUl"l~, Ilnd th(u'ofoff! roqui rod no,)flower. The fact was, t.hft author Ilrquecl, t.hat the only quoaUon that the Human Riqht8 C()mmitteo waa roquirod t.o anUWHl in that: ca9n wau whothtH', ratiolH~ matcriau, t.hu alloqnd violat.ion came lIndCH ar tiel.· 26 of thll lnternationa 1 Cov{'Oa-nt-on civi! Ilnd Poll tieal Riqht9. The aut.hor Ilubmittml that that qUHatloll mUllt he c1nHweroo in the Affirmatlve. -] 41 5.9 'l'he author: t",rther reoalled that the ntnto party was of. the o~linion that tho allcged violation oould also fall undor artiole 9 of the International Covenant on Eoonomio, Social and Cultural Right.s in oonjunction with artioles 2 and 3 of the same Covenant. Although that c;uestion wao not: l:elevllnt 1n the caso in point, t.ho author oub~1~ted, it was obvio~~ that oertaln issueu were related to provisiono ~n bot.h Covenants. Although oivil and,~oUt1oal right.s Qn the ono hand and ec.'cmomic and social and cultutal rights on the other had teen inoorporated for teohr,im.l reasons into two different Covenants, it was II faot, the auth,u submitted, thnt those right..4 were M,~:•.&.y intel'dependent. That interdependenoe, ahe argued, hud not only emerged in the preamble to both Covenarlts, but was also onoe again underlined in General Assembly reoolutio'l 543 (VI), in whioh it had beon decided to draw up two covenants, -the en10yment of civio and political freedorns anc'i of @c<lnomico, s~ial and oultural riqhtd are int~roonnected and interaepen~ent·. Tho State party, too, ~he submitted, had explicitly r.ocognized that interdepend~nce earlier in the Explanatory Memorandum to the Act of Approval, eappandhc 1, page &1 "tho draft'tl'i of t he two '::ovenants wanted to underline the parallel "ature of the ~resent international oonventio~9 by formula~inq the preambles il1 almost entirely It'entical words. The point is that they ~avo expressoJ in the preambles that, Dlthough civil rights and political [l~hts on the one hand and oconomio, social and cultural dghta on th~ ot:ler, have been inct)l;:l)Orlllted il,to two aopar6lta documonts, the enjoyment of alL these rights is esoontial~. If tho State party was intending to imply t.hat the i\ubjeot-matter covered by the on" t"ovenant did not: ccme under tile other, that was d.lmono\:nbly incloU'ect. even a I]ummary comparison of the opening artioles of t~e two covenants bore wltnosa to the contrary, the author argued. 5.10 In her oplnio~, the author added, th~ State patty seomed to wish to say that t'he Human nlgt'ats Cc.>l11J1'litteo was not competent to take note of the present complaint becAuse the Mottel' could aloo be brought up aD l)utt of the supervisory prooedure u"del' the Internat.ional Covenant on Economic, Social und Cult.ural Rights (aee art. 16-22). 'rh"t OIlOott.1on, the auth~l'r.ontended, WUG not valid bEtcauae the reportln9 proo@ldtue under tho Interrlatlonal Co'/<mant on Economic, Social and Cultur:al Righta could flot be r:eqardod laB "another procedure of international investigation or settloMent" in tho aonae of article 5, paragraph 2 (a) of the OVt ional Prt,t:ocol. 6.1 Before corlui~ecin9 any ~lai1\o contained ill lj communication, the Human Rlqhta Committee mlJot, .in acc()r~rmco with rulo 87 of itu provisional rulos of procedure, decide whether or not it ia admissible under tho Optional Protocol to the Covenant. 6.2 Al'Hcle 5, pauqraph 2 (11), of the Optional Protocol proclut1~s the Committen froo\ conoi6erinq a communication if the aarno matter is b"ing examined undor anothor .;>rooedure of intornatit.mal investigation or settlement. In this connection thf: Committee oboQrveH that the examination or State roports, submitted under articlo 16 or the International Covenant: on Economic, Social and Cultural RiqhtR, dool) not, within the moaninq of article 5, pal'aqraph 2 (a), conotitute an examination of the "same matter" ao a claim by an individual submitted to the Human Rights Couooittee under the Optional Protocol. 6.3 The Committee further obsorves that a claim Bubmitted under the Optional Protocol ooncerning an alloqod breach of a provision of the International C~vonant cm Civil and Political Rights, cannot ha declared inadmissible solely because the facta also rel,te to a right prot~cted by the 'Inte,nfttional Covenant on Economic, Social and CUltural Rights Ot" any other international infJtrument. The Commltt.~p. -144-,. need only teat whother the allegation relates to a breach of a right proteoted by the International Covenant on CivU and PoUtlcftl Right.A. 6.4 Article S, I-aragraph 2 (h), of the Cptlonal Protocol precludes the Committee from cQual<"lerinq a communication l'nleB~ (tomeat ie remoeBar. hftve been exhausted. Ttw part iea to tho present: C~lllmunteat. ion agree that ctolll6Ht h: relllUlHos have been exhausted.

6. I) With regard to the State party's inquiry concerning the 9<lope of article 26 ol the International Covenant on Civil and Political Rights, the Committee did not conoidal: it necessary to pronounce on itB Dcope priOl' to decidinq on the admissibility of the communication. However, havinq regard to the State party' 8 atai:ement (para. 4.4 above) that it ('eserved the right to s\lbmit fUl'ther obaervations which might have an effect on the question of tile admissibility of ttw caGe, the Committee pointed out that. it would take into nCGOllllt. any furth~r oboervatiol\u received on the matter. 7. On 1.5 October 1985, the Human Rights Committee therf'fore decided that the t.:onununication Wil9 adlfliD9ible. In aocordance with article 4, paraqraph 2, of the Optional Protocol, the State party was roquested to submit lo the Committee, within six montha of tho date of tranomltta1 to it or the decision on admissibility, writton llxplanat Iona 01' statements clar ltyinq the matter and t.hE;> mUH1U rea, 1{' any, that might. havo beon taken by it.. 8.1 In itn tlubminuion undor lllrttcle 4, paraqraph 2, of the Optional Protocol, datod 22 May 19U6, the state plHty aqain ob:1octecl to the I\dmi8sibiUty of tho communicat ion, rei teratinq t.he acqumenta advanced in it.f1 AuhmiAAion of 29 May ltJ8S. 8.2 In dia,::u69inq the meritu of the C/1ge, the ~ttll(\ part.y plu('ic1atoB firot t.he factual hackql"lUnd an follows: "When Mrs. 8roeka applied for WWV benefitu in li'ebruary 1980, /loetion 13, Bubuoct!OIl 1 (1), waa still applicable. 'I'hio Beet.ion laid down th.lt WWV benofitR could not. be claimed by thcwe married womOf\ who we[(~ nolthor broadwinnern nor permanontly Roparatod from their huaban<ln. 'rho concept of 'brotldwinnol" 8E\ refcned to 1n soct.ion 11, oubuoction 1 (1), of ~ waD of par.tlcular Riqnificanco, and wae further amplif ied in HtatutO[y 1,'etrumenta haouc1 Oil t.he Act (tho laRt relevant inutrumunt OOinq tho miniatel:ial decreo of 5 April 1976, Neth<,)[tanda C'.overnment (;a~etto 1976, 72). Whether a mauied wuman waA dOUIRl'Jd to Nl II breadwinner depondod, inter alia, on t.he absolute amount of tho famUy'fl total irw·,mo and on What-proportion of it was contr ibl:ted by tho wife. "hat the conditiono for qranlinq benofits laid down in unction 13, lJubooction t (1), of. WWV applied solely to married women Ilnd not to marriod mon is due to the fact that the proviB1on in quootion couoopollded to the then prevai ling viowa in society in qoneral conoerning the roloa at men and women within marr hge and Rociety. Virtually all Man ied mon who had jobu could be regarded as thoir family's broadwinner, ao that it wao unn~coHHary tu check whe~her they mel thia criterion for the granting of boner. ita upon hc.teominl unemployed. Thello v leWD have gradual ty ch/mged in later yuar~. ThiH Qapect will t~ further dincuoned helow (~eo para. 8.4). -'{'he Nethor lands in a m(tmb{~r State of the I'~uropoan Economic Community (Io:t-:C). On Iq lleeClmhfH 1978 the CounGi 1 of thp European Communitloo iaBu(',) /) diructivl' on t:h(~ P(()(1rtHlllive impl(~lIlpnt... ti()n of thp principle of .. 1 4'1'· equal treatment for mon and women in mattorD of sooial tJecudty (79/7/EEC), giving momber Statea a period of six years, untU 23 l)ocombcL' 1984, within whioh to mak~ any amendments to lagislation which might be neceDaory in ~rdol' to bring it into Une with the directive. Pursuant to thin directive the Netherlands Government examined th, criterion for the granting of benefits laid down in section 13, subsection 1 (1), of WWV in the light of the principle of eq~al treatment of men and women and in the light of the ohangin<j 1'')10 patter:ns oC tho saKeD ih the years since about 1960. ·Since it could no longer be assumed as a matter of oourse in the ~arly 19809 that married men with jobs ahould always be rogor~ed Aa 'breo~winnora', the Netherlands amended section 13, subDection 1 (1), of wwv to meet its obligations undar the EEC directivo. The amendmont conaiatod of the deletion of aection 13, olJbsection 1 (1), with the re9ult that it became possible for married women who were not breadwinners to claim WWV benefits, while the duration of the benefits WIlS reducod for poople agod undtH')1). "In view of changes in the status of women - and particularly married women - in recent dO('ades, the failure to award Mr 9. Brooks WWV bonet: its in 1979 is QxpHcable in hiator ieal termo. If she woro to apply fot' Bueh benefi~a now, the result would be diff~rent." 8.3 With rogard to the scope of article 26 ()f tho Covenant, the Stato party argues, inter alia, as followsl "The Netherlands Government takes tho view that; artic:lo 2(i of: the Covenant: dooa entail all obligation to avoid dillcrimination, but that this articl.e eun only be invok(;·d under the Optional Protocol to the Covenant in the sphere 4,,,1: civil and political rights, not nOCe9S/;lr By limited to thooo civil and poHtical rights that are embodied in the Covommt.. 'i'he Government (~ould, for inatanco, envi13ogo the admissibility under the Optional Protocol of a c.omphint concerni"~l discrimination in the Held uf tuxation. Hut it cannot acc<l(,t tho admisoibUity of Q complaint coneerniuq tho onjoymont ot? economio, ooch1 and cultul:al l'ights. Tho latter cateqory of:' rlqhta in tho ob1oct or a aepaute UI"litQd Nations CO\'enunt. Mrs. Drooku' complaint relateo to righto in tho ophel'~t of aooial secur ity, which fall under tho the Intornational Covenant: on Economic, Social arad Cultur.al IHghta. I ticlufJ 2, J alld 9 of that CovefHlnt aro of particular: reluvlJtI('O hero. 'rhat Covl,·nant hoo itl) own I.1pe<:ific ayatom Ilnd it., own 9peciflt;~ organ for i.,ternationlll monltoriu4 o[ how Ht:lltOR partieo moot their obligat1ono and ueUberatoLy does not pr.ovide for all in(Hv1.dllul complaints procedure. "'l'he Govol:nmont conaidoru it incompatible with tho aimn of both the Covonanto and the Optional Protocol th~lt an individual complaint with rOEJpecl to tho right 0(' 9o<:!hl socul'1ty, aD reforred to in articlH 9 n(the Intornutional Covonant on Economic, Social and Cultural IHqht9, o()ult.'l 'oe doalt with by the Human IHghte Committee by way 01' an iruHviduul complaint undor the Optional Protocol bused on article 26 of: the International Covonant on civil and Political Rights. "The Netherlanda Govornment reports to tho Bconomh: and Social Council on mattera concerning the way it ls fdf illinq ito obl1g11tiolHl with re9pp.ct to the right to soc •.al security, in;lcf~ordance with the rHl~val\t r:ulHB of thp International Covenant on I~conoll\ic, Social and Cultural IHqhlO ..• -146- "Should the Human Rlghta Committee take tha view that Itrticl~ 26 of the International Covenant on Civil and l'oUti.cal IUqhta ought to be interpreted more broadly, thuD that this article ia applioable to,",omplainta oonoerning dil1cdmination in the field of oooial aeourity, the Government would observe that in that case article 26 must also be interpreted in the light of other compilt'able United Nations oonventions laying,1own obl1gati.ona to oombat and ellmin&te discrimination in the field of economic, aocial and cultural ciqhta. The GOVQrlllllent w<.lllld plJlrtioularl')' point to the International Convention on the Elimination of All Forma of Raoial Oiacrimination and the Convention on the Elimination of All Forma of Diocrimination against Women. 11If art iele 26 of the International Covenant on Civil bnd PoU tical Rights W9ro doemed applicable to complaints concerning discriminatory olemontB in national leqialation in tho field of those oonventionD, this could surely not be takon to moan thllt a State party would ho required to havu eliminated all pOllsible discriminatory elements fro,'Il ita legislation in thoeo fielda at the timo of ratification of the Covonant. Yearo of work are required in orde.: to examine the wholo complox of national legialation in aearch of discriminatory eloments. The nearch can never be completed, eithor, aa diot.1nctiono in logialdtlon \IIhich aro jURti.fiable in the liqht of oucial v{ewe and conditiono prevaiUnq when they are first made may bocome diaput,able as changoB occur in tilt-} views hnld in flociety •••• "If thn Human rHqhbJ Comm1t'tee uhould dHcido that, artiole 26 of the Intornati(>nal Covonant on Civil Ilnd Political Rights entails ohligations with roql1rd to h'q iolation in the economic, soc ial and cultural field, such obl1qatiollLl Gould, in t~e Government's viow, not comprise more than an ubliqati,on of Btat.uo to flubj()ct national logislation to poriodio oxamination after ratification of the Covonant wi~h a viow to seoking out diaoriminatory elomento and, if t'.hoy arc round, to proql'oo31voly taking meaaures to eliminato thorn to tho mllximull\ of tt.o State's availablo rosourceR. Such examinations are undor WdY i.n t.ho Not.hol'lan<la wit~ L'ogard to var iOUB aspectA of d19criminlltion, inclUding discl'imination bot.woon mon and womOI\." 8.4 with r.Qqard to tho pdn~iplo of oqlLal1ty laid down in art.lclo 26 of tho Covonaut: in l'o1l.atlon to aoetinn 13, oul>l;oetiou l (1), ot' WWV in ito unamondt.'<3 form, the St.ate ptU'ty {:)xplaiIHl Hie loqiolutivo h1otory of WWV and in l~fHticular th., flocial iUfJtificatlon of tIlfl "lll'oadwinI\CH'" concopt at the timo the law WQO drafted. The Stato party <:ontol\l10 thl1t, with the "broadwinnor" concopt, "a proper balanco wao achiov~d botwoon tho limihlll ~vai1Qh1lity oL pUbl1e fundH (which muko9 it noceuuary to put them to limitod, wo11-conoif.1ored and aolective uso) on the ono hand und tht} (¥)'/(Hnmolit'n ohliqation to (>l't)vidn !locial security on tho othor. "'he Govorntnont duefi 'lot oecopt that. thn 'broadwinnor' concopt aB Quch wau 'dillGdminatory' in thl;! fJf1nIJH that "'fluttl callon woro trl;!otnd in tin unequal wny by law." MorOOVtH', it i~ IJHJUtld that tIlt! 1'1'OV1910no of WWV "aro basoo on rQllBOnob10 90(~iat and ol~onomk coufliclol'llti·.)IHI which lHO not. c11ocriminatory in origin. "ho rOlltriction makln4 th" pl'ov1(11on in quoat.hm inapplicable to mon was inopirud not hy Qny desire to diacr 1mill4ltn in f'llvour of .;'Ion and l1qllinDt womon but by the de facto sochl and cwonoll\ic oituation which oxiuted at the time when the Act was --- paollod and wh1<:h would huvtl mado it. p<>1nthl :1l1 to declare,:h(\ provision applic"ble to mono At thl} t imn whc'l\ Mt U. lhooko tlppliod for unempl.oymollt henef its the do _~~~h~ nituat,i\m wan tlot ~lAtwntll\lly d.l.ffort'nt. Tht>lO w..u~ thereforo no violation of arth:ln l(l of the COVtllli\lIt. '{'h1H in not altpred by the hid: that a now social -147· hond has heen qrowinq in (Qcenl ytHU'S, which htltJ made it 1l1\Cloain.lb10 ('(u' t.ho provision to remain in fOLoe il\ the preaont Bocial context." 8.5 With reforcnce to tho decision of the Central Uoal"d of Appoal of 26 November 1983, which the authOl" cdticheB, the State party canter.no that I "The observation of the Central Board of Appeal that the Covenants omploy different international control systems i9 highly relevant. Not only do parties to the Covenants report to different Unit~d Nations bodiee but, above all, there is a major difference between the Covenanto aa rogards tho possibility of complaints by St.atoa or individuals, whioh sKiata only "ndor the Inttunational Covenant on Civil and Political Rights. The contracting parties deliberately chose to make this dHference in international mnnitorinq syatems, because the nature and substance of 9ocial, 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 .Juno 1986, the author l'eiteratofJ t.hat:. "article 26 i r the Covenant is explicitly not confined to equal treatment with r~fel'ence to certain rights, but stipulates a genoral principle of equality." 9.2 With regard to the Stato party' 8 argument that it would be incompatiblo wi.t.h the aims of both the Covenants and tho Optinnal Protocol if an i.ndividual complaint with respect to the rights of 80cial security, aB referred to 1n article 9 of tho International Covan&nt on Economic, Social and Cultural Riqht8 could be dealt with by tho Human Rights Committeo, the author contends that this ~rgument ia ill-foundee, becauso she ia not complaining about the level of social socurity o~ other iS9ues relating to article 9 of the Intornational Covenant on t:<."(momic, Social and Cultural Rights, but rather sho claims to be a victim of unequal troatment prohibited by article 26 of the Intorllational Covenant on Civil and Political Rights. 9.3 Tho author further: notos that the State party "Deoms to admit implicitly that the provlsiono of the Unemployment Benefits Act were contrary to article 26 at tho tlme whcn {ahe} applied for unomployment benefits, by stating that tho provioionn in question in the meantime havo boen amended in a way compatible wlth article 26 of tho International Covenant on Civil and PoUtlGal Nights. 10. The lIumltn IHghta Committ.ee haa cOIlDidorod the present communication in the light of all information made availablo to it by tho llart.ies, a8 provided ln article 5, paragraph 1, of the Optional Protocol. The facto of the ca(lo are not ill dit:.pute. 11. Art:.1cle 26 of the Co anant on Civil and Political Rightu providoDI "All persona are equal before the law and aro ontitled withou~' any diocrimination to the equal PLotoction of tho law. In thig respect., the taw shall prohibit any discrimination and guaranteo to all perooPll equal and effective protection against diacriminat1nn on any ground such as rano, colour, SOK, 1anquago, r~l1g1on, political or oth, " opinion, national or 80clal orlgin, property, birth 01' other status." 12.1 The state pal'ty contends that there ls considerable overlapping of the provisions of article 26 with the proviaiolls of article 2 of the Intornat.iollnl -148- r I Covonunt on Economic, Social and Cultural Rights. Tha Committee ia of the viow that the 1nt.ernational COVtH\tmt:. on Civil lll'ld Politioal lHqhta would atUl apply oven if II particular aU"jjoot-matter is l'eferrQd to or oovered in other intornational inatL'uments, for example, the Inter:nat.ional Convention on the Elimtnt.ltion of All Forma of Racial oiBcrtmination, the Convention nn the Elimination of All Formo of Discrimination against Women, or, as in the prosent case, the International Covenant on EconomAo, Social and Cultural Rights. Notwithstanding the interrelated drtaftinq history of the two Covenants, it remains necessary for the Committee to apply fully the terms of. the Int~rnational Covenant on civil and Political Righta. The COl1uT.1ttee observeD in this connection that tho proviaionfJ of artiole 2 of the International Covenant on Eoonomio, Social and Cultural Rights do not detract from tho full application of article 26 of the International Covenant on Civil and Political Rights. 12.2 'l'he Committee haa alao examined t.he contention of tho Stilte ptlrty that nrticte 26 of th~ International Covenant on Civil and Political Rights cannot be invoked in respect of a rignt which ia speoifically provided for under article 9 of tho Internati~nal Covenant on Economic, Social and Cultural Rights (social 90allrity, inoluding &ocial inourance). In so doing, the Committoe has perused the rolevant travaux ~eparatoire9 of the International Covenant on Civil and Political Riqhta, namely, tho summary records of the discussions that took plaoe in the Commiosion on Human Rights in 1948, 1949, 1950 and 1952 and in the Third Committee of tho Genoral Assembly in 1961, which provide a "supplomentary means of interpretation" (art. U of tho Vienna ConVQnt ion on tho Law of Treat1eE a/). The discussions, dt the timo of drafting, concerning tho quootion whother thu-acopo of article 26 extended t.o riqhta not otherwioe guaranteed by the Covenant, were incunclusivo and cannot altor tho concluoion arrived at by the ordinary meano of intorprotation referrod to in paragraph 12.3 bolow.

12. :J For tho purpose of determining the ocopo of article 26, the Comlllittoe haa takon into account tho "ordinary moaning" of oach element of the article in ito context and in the light of ita object and pUq>oRO (iArt. 31 of tho Vienna ConVQntlofl on the Law of Treaties). The Committoe begins by noting that articlo 26 donn not merely duplicato tho guaraotooA already providod for in article 2. It dor hOB frolll t.ho prlnoiple of aqua! protoction of the law without discrimination, .ao contained in article 7 of tho Universal Doctaratit)n of numan Riqhta, which p1'ohibito diacl'iminotion il\ law or in pract:.icQ in any field rQClulatQd and protQctod by public authoritioa. Artlcle 26 iR thUD concerned with the obligations imposed (>11 States ill regard t.o theia: log iolat ion and the application thereof. 12.4 Although articlo 26 requi roo that log iolatlon ahould prohibit d iacrimination, it <looo not: ut: itself contain any obli,r ion with respoct t.o the mattora that may be provided for by laqialation. ThuH,t~O not, for examplo, roquiro Bny StAte to enacl logiulation t.o provide for ROC' 1 oecuflty. Howevor, whon ouch loqlolation i9 adoptod in the oxercioo of a Stato'o oovo{Qign powor, then ouch leqiolation must comply with article 26 of the Lovonant. 12.5 Tho Committee obaorvea in thia connection that what is at issue is not whuther 01" not social 90CUrity should he proqnwsivoly ostftbli9h~td in the NotherlandR but whether the 10<Jialation providing for 80cial ROCUrity violates th/' prohibition against discrimination contained in article 26 of tho Intornational Covenant on Civil and Political Rlqhto and tho qu~rantee givon therein to all poroono regardinq oqua1 and effect! vc prolttet!on at,l.li nat d hcr iminat ion. -149- 11. The right to ~qual1ty befol:o the law and to equal protection of the law without any diBcr imination doeD not ",ak~ all diffoLel\OeS of treatment disoriminatory. 1\ differentiation based on I:eaaonablo and objective oriteria doca not amount to prohibited discrimination within the meaning of artiJle 26. 14. It therefore remaina for the Committeo to determine whether the cH f.forentiat1on in Nethorlando law at the time in question and as applied to Mrs. Brooks oonstituted diacrimination within th~ meaning of 81:tic1e 26. '1'he Committee notes that in Netherlands law the proviaiona of articleo 84 and 85 of the Netherlands Civil Code impose equal rights and obligatio~a on both opousea with regard to their joint income. Under section 13, aubsectic~ 1 (1), of the Unemployment Benefits Act (WWV), a married woman, in order to receivo WWV benefits, had to prove that aho was a ·breadwinner" - a condition that did not uP1>l'1 to married men. Thus a differentiation which appears on one level to be ono of status is in fact one of sox, plaoing married women at a disadvantage compared with married men. Such a differentiation 10 not reaaonable, and this seemo to have been effectively acknowledged evell by the State party by the onactment or a change in the law on 29 April 1985, with retroactive effect tc 23 Decombor 1984 (see para. 4.5 above). lS. The circumstancos in which Mrs. Brooks found heraolf. at the material time And the application of the then valid Nether1anda law mado hor Lt victim of a violation, based on sex, of article 26 of tho International Covenant on Civil and Political Riqhta, bocause sho was denied a social security benoiit 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 ttw discriminatory provlsiona in the law applied to Mrs. Brooks havo, subsequently, been oliminatod. Although the State party has thus taken tho necessary measurea to put an end to the kind of discr imination ouffered by Mrs. Brooks at the time complained or, the Committee ia of the view that the State party should offer Mrs. Urooks an appropriate remedy. Notes !I United Nationa, ~ur:l.d!.,cal Yoarbook 19(i9 (Unitod Nations publication, Sales No. E.71.V.4), p. 140.