01; 'l'H1': OPTIONAL PIU)'l'OCOI.
The author of tho communication Onitinl lattur datod 11) ,Tuly ItHJ4 40<1 lIubooquont lottoro dotod 11 Auquot 1984, 0 July 11)8!l I1tU} :l'l ,1111\0 l'HJb) l\ r.udwiq GUtltaaf Uanninq, II Nnt:horlllndr; eitizon horl\ i.1 11)60. 11" ifI r0l'rorlflnt'cHl hy loqa1 coullHol.
Tho 11UI:htH c:luinHl to be I:l victim uf n vio111tll)U hy t:Iw (;OVtHlllIHH,t of Uw Nothorlan<19 of lu:ticlo :l6 ill conjunction with Ilrtklo 2, lllUllqrllph 1 ot' t,htl International Covonant on Civil and Pol1tic{ll IHqhtfJ. 'J..:l H~l »tatus that, 1)11 a COllf.HlquOn(~o of un automobilo accldol\t. in l'J71), t\(~ h4Wlamu diRahletl and cOI\f'inod. to a whooldHlir. Durinq tho t'irul YtllH' IIftO" thu l,ll:<:ldullt. lIu receivod ~>dymonto horn hi9 omployor'a inuul'anco, allot' Uw fit'Ht YO~H, Jlay,"olltu wore receivod untlm' anothor inuurllnco proqrammo rOl omployonu whu hovo hUlHl modically c1l.1cllU(}() unfit t.o work. 'I'hia proCJl'ammo pl'uvidnu fo&,' hilJtwl' l'oyllwnttl to married b(}nefit~iarinn. 'I'ho authtH' clalmu t.hat lIillCO 11,'" hu huo htwn Utl'1I'I'IHl to Mlon I';Bthol' Ver~uhlJron Ilnl1 that: they livo loqothct' ill commoll""luw IIlIUl'Il\I,H. 'l'herefol'o he mallltaiun t.hat he flhoulcl h~ aeeol'tlutl inrllH~l'w\, honot'itu IHl ,. IlIUU iucl man lind no\: an ca ainql(\ porfJon. BUl'!I bellt'fito, howevor, havo hOUII donied to him and ho hao toklHl tho callo to ttw r:umpotOtll infltoll<:Oll in tho NothtH'll1n<1u. ,'1", l~""ll van B01'OOP in Nc)\:t.nrdllnl (an orqlln dOlllinq with atlminiutrativu appullllJ ill umployn".l\t ifJuuo!l) h..~lcJ in 190L that hiu claim wan ill-fouudod, hn &JUh~H''lUtHltly apl'llt'ilul' to the Contralo Italld V/Ul IhH'oup il\ tltrudlt, which in IIHIl confil'lllud t.ho duelnioll 1)1 tho lowor lnflt£lnco. 110 claimo th"l. thiB IlppnLll md'liullt.,·c) clonwut.lc l"Itilllldlurl. relevant to the question of admissibility of the communication.
In i~8 submisuion dated ~g May 1985 the State party un~erlined, inter alia, thB'::;a (n) "The l)rinclp:Le that elements of discriminati~n ill t.he realization of tho right to soei ~l BecU': ity are to be eliminated ia embodied in article I} in con1uP,')~tio" • '.th articles 2 and 3 of the Internltt.onul Covenant on Economic, Sooial and Cultural rtlqhta", (b) "'rho Government of the Kingdom of the Netherlands hao acceptod to implemont this principle under the terms .:>f the Inhunational Covenant on Ji:(.onomic., Social and Cultural Rights. lmder theso terms, UtateCl parties have uncl;,.~rtaken to take atepR to the maximum of thoiL av~ilablo r~gOUrCe9 with a view to achieving progressively the full realization of th~ riqhte r~coqnized in that Covenant (art • ~ , para • 1)", (e) "Tha process of gradual reaU zat ion to the maximum of i., ~.:::!. !.;:~~lo reDourU~A is woll on its way in the t-.etherlanclB. Rem!iilling el':':llcnts of dj '3cr .i.:nlnation it. the rtMluati'ln of the rights u.:o being a:"ld \fnll be grad~ally eliminated", (d) "Th@. International Covenant on Economic, Social and Cultural Right:tl has established ita own sYfltem for international cmltrol of the WR.y in which States pul'tieo are fUlfi1l1ng their obUgation~. To this end States parties havo undertaken to aubmit t:l the Economic and Social Council reports on tho moaourell they havo adopted and the progross th~y are making. The Government, of the Kingdom of the Netheuand(; to this cnd submitted its firAt l'epo.:t in 1983".
Tho State p... rty then pOGod the q1lOation whether th(' way in which the Notherlands was fulfilling its obli\j~t1ons Imdcr article 9 in con'junction with articles 2 and 3 01 the International Co...enant on Eet.'"omie, Social and Cultural Rights could becomd, by way of artic.le 26 of He International Covel\ant on Civil and Political Hiqt.ts, tl.~ ob lect of an exam) natior. by the Human nights Committee. The State party 9ubmitte1 that that quostion wafl relevant for the doc1nion whether tho communi~~tion was admisoible.
'l'he State party atresaed that it WOIJld grel:'lt-ly benofit fr0l1l receiv1.ng an ~n9\~' hom the Human Rights CommHtee to t.,e que13tion mentioned in paraqraph 4.2 above. "Rince such an answer could hardly be given without goinq into one aspect of the uefits of the ca~e - i.e. I the question nf the BCOpe of article 26 of the Intern&tlonal Covenant Of. Civil and P<.:l i Heal Riqh"fJ - the GoVf:\r!o .ant would respectfully i equeat the Committee to join the question of admi.9f1ibility to an examination of the mar it. A of the case. J
In case the C'ommitt.eo did not grant thdt reqllofit- ..,,"cl declared the communication adK:isalble, the ttate pll;:-ly reo(-'(vac1 t.he right to Clubntit, in the ~our80 of the proceedings, obaerv£'ltions which miqht have an effect on thp question 0f admi90ibility. f,1 Before considering any claimo contained in a communication, the Human RightoJ COr.lmittt·e tn1l9t, in accordtmce with rule 87 of its prcvisional rules of procedure, decide whethe~ or not it is ar1missible undor the Oot 40nal Protocol to the Covenant.
Article S, paragraph 2 (a), oi: t.h~ Op... tona1. Protocol precludos the Committ:f'H from conaldering a communicatior. if the same matter is being examined under anothol procedure of internlttional inveot igation or Bettlement. In t.his connection tho Committet! observes t.hat the examinati<m of State rep..>rtll, submitted under article 16 of the International Covenant on Economic, Social and Cultural Right9, doeo nol, within the meaning of article 5 (2) (a), constitute an examination of tlw "same matt.er" as a claim by an individual submitted to the Human Rights Committee under the Gptional Protocol.
The Committ(!e further observes t.hat: Cl claim Rubmitted under the Optional l'rotOCt,1. concerninq an alleqed breach of a provision of' the International Covenant on civU and Poli tical RiqhtB is not nccoosllr ily incompatible with tho prd'lloiono of that Covenant \aee art. 3 of tho Opt ional Protocol), because thl~ facta a100 relate to a riqht ~rotectod by the International Coven~nt on Economic, Social and Cultural Rights or any other internat tonal inotrument. It at ill had to be tested ~/hether the alleqed br~3ch of a t' iqht protected by the Internat ional Covenant on Civil and Political RightB wa~ borne out by the f'acu.l.
Article 5, paragraph 2 (b), oL thtl optional Protncol prec1\Jc1es th.. r'.'Ilnmtttef' from C'onRt~ertnq a communication unlcAt] domootic l'omodieR have boen exhuullted. "I:t! parties to the present communicat.ion IlfJree that domestic remedies have bel'n exhausted. 6.1:) With regard to the ~Hate part.y't] inquiry concerninq tht~ scopo of art·tcle 26 (If the International Covenant '-'n Civil anci Politic-al Riqht.B, the Committee (11<1 not consider it neceRRIHY to pr .(AlnCO on its <lcope prior t.O deciding on t.he admiauibl11 ty nf the t:ommlln Wilt ion. H<...wPver, havi nq reqa~:! to the State party' 6 Rtatement (para. 4.4 llt~V~) that it reserved th3 right to 8ubmit f~rther oboervlltlun& wh.ch might have an effect on the quoHtion of tho ndmi99tbility of the' Cllne, tho rommlt:'.o~ pointed out, that it would take into account any furthel observat ions received on t.ho matter.
On 2'l ()r~t()ber 198'; the Human Rlqhte CommiUnu therofc)l'u dpcided that the com.nunicatf.on WiJa admi8Aibl~. In accordance with IHtiele 4, paragraph 2, of tlw O!;>tional Protncol, the Stat.e part.y wao reqllonled to tlllbmit. to t.he Committee, wHt-ln B1x monthfJ of the dl'lte of tra:"lHm1t.llll to it. of the decision on admisalbH ily, written &xplan~tionR or 9tatemanta c1ar~fying th~ matter and the measureD, if any, t.hal. might. have been taken by it. IIPl'ragraph 2.2 of the Human Rights Committoa'a decision of 23 July 1985 sets f;orth the event.o prior to Mr. Oanning's complaint. The factu I,)f tho cuoe need to be stated mot:u precieely. After the accidont, Mr. Danninq L'olw,ived benefit undor thu SicknooB nenefita ~ct, (ZW), which wao oupplomonted by hia empl()yor. As frotu 14 July 1900 he receivnft disablement ~l1of1t in accoL'dance with tho Gene.:al DiuablamCilnt Benefits Al:t (AAW) and the Oioabil1ty InfJurance Act (\tlAO). 'l'hiB oonefit was RUPl-'lemented by payment.) mado in accordance with the General Anslat",nco Act (MW). "To obtain a cl(\ar picture of tt\{l llr:ooent matter 1t io ilnpoft,unt to conaidor the regulations for di.e.ubility for work in the Nothol'llllda. ~Il\ployoit persona pay contl'ibutiono, based on their incomo, towardfl var iouo forms (')f' social i'lBurance. 'l'he moat important of those in tho pn!fJent caso U1"<'> tho Sickneas Benefits Ac'; (ZW), the DiaabiUty Inourance 'ct (WAO) and the Gonol'd Disabloment Benefits Act (AAW). If the employeo faJ1a ill, ha can recoive oenefit ~quivalent to 70 per cent of hia moat recent income (up to a yearly incumo + f. 60,000) fot' a podod of up to ono yocu un 'H ZW. Ttlf:> omployer will 4,n~·:no9t cases contribute the remaining :10 per cont of the enm",oyeo'o income. If the employs\) r('lllaina ill fOL' more than ono yoar, u icknoIJ6 honor it. iu replaced by paymAnts made under the provisions of AAW and WAO. IlAAW is a basic payment. for (long-tek:m) disability and is linl'ed to thn minimum subsistence inoome aa dofined in the Netherlands. Personn who wore in full-timo employment prior to becoming disabled qualify in the rirat instl.lncCc' (or a standard payment, basod on what is terh1.1d the • ~,:,;j'" ::i~U"f~'. IIIn the caGe of total dinability, the baso figuro will qivo a paymont equivalent to 70 POl' cent of the cunont Het statutory minimum wago. Only married poop10 with 11 depondent apouue .1nd unmat"rh."<l people with ono or 1II0l"0 c'lepAndont childron lIIay quall Cy fOt' un inc1'oooo of. the baoe figuro by l'l to :lO per cont, deponding on the amount of the inaurad pOr9()n'O own incoll\(J (art. AAW). 'Married IHHRon' la defined in ouch l.l way ao',l to oxeludH unmarried cohabitants. "This rather complicated system, involving two dif(~ront ActH concerning Jiaablomont, can be explainod j n hi,atoL' leal tormo. WAO tlat.olJ ft'om 16 '....ebL·uIHy 1967 and MW from 11 Decomber 1975. Tho lntr:oduct.iofl of MW (which unlike WAO waG not L"oatrictod to employees, but 11100 included the fJulf-employed) moant that WAO (which wao uuually hhjhor than MW) acquired thu f1illction ot: a fJupplemontllrt paymont. NIn the cane of partial dioability or parl-time l;lmploymont, hAW Ilnd WAO payments aro roduced propnrt ionately. If the payment calculutf'd ln th io way io 100a than the official Huholotence lovel, it can be 9upplom~nted by a (plu'tial) payment ulldor the provisionn of thu Gonot'al AnlliHtanc(' Act (J\nW), which containu regul,.tiollG on the minimum 9uhaiHton~H incom{l. "hc alzo of payments made undldr thn pHlVininnn of AHW in /.lloo linkod \.:0 t.hn UHt minimum "It will be replaced by a Supplementary Benefits Act, which will provide for supplementary payments in cases where the basic payment is less than the official minimal subsistence income. In the course of drafting this new legislation, the question whether married people and unmarried cohabitants will be accorded equal treatment, and if so to what extent, will be examined. "Mr. Danning submitted that he was in receipt of a supplementary payment under the provisions of ABW. This payment is apparently made because the AAW!WAO payment is below the official subsistence level. "The MW payment made to Mr. Danning, who at the time of applying was cohabiting with his girl-friend, was based on the general base figure and not on the higher, married person's base figure. In fact it would make no difference to the total payment made to Mr. Danning if the AAW payment were to be calculated using the married person's base figure. This is because he lives with his girl-friend and therefore receives a supplementary family allowance under the provisions of ABW, which brings his total social security payment up to the same level <i.e., the net minimum wage) as an AAW payment based on the married person's base figure. Since Mr. Danning is in receipt of a supplementary allowance under ABW, the Netherlands Government is of the opinion that the difference between ABW and AAW in respect of the partner's financial position and income is not a factor in the present case. The conclusion is therefore that Mr. Danning's complaint is based purely on considerations of principle."
With regard to the scope of article 26 of the International Covenant on Civil and Political Rights, the State party argues, inter alia, as follows: "The Netherlands Government takes the view that article 26 of the Covenant does entail an obligation to avoid discrimination, but that this article can only be invoked under the Optional Protocol to the Covenant in the sphere of civil and political rights, not necessarily limited to those civil and political rights that are embodied in the Covenant. The Government could, for instance, envisage the admissibility under the Optional Protocol of a complaint concerning discrimination in the field of taxation. But the Government cannot accept the admissibility of a complaint concerning the enjoyment of economic, social and cult~ral rights. The latter category of rights is the object of a separate United Nations convention. Mr. Danning's complaint relates to rights in the sphere of social security, which fall under the International Covenant on Economic, Social and Cultural Rights. Articles 2, 3 and 9 of that Covenant are of particular relevance here. That Covenant has its own specific system and its own specific organ for -155- to the right of social security, as referred to in article 9 of the International Covenant on Civil and Political ~ight8, could be dealt with by the Humnn niqhts Committee by way of an indivi-dual complaint under the Opt.ional Protocol based on article 26 of the International Cov&nant on Civil and Political Rights. "The Netherlands Government reports to the F.conomic and Social Council on matters concerning the way it is fulfilling its obligations with respect to t~e right to social security, in accordance with the relevant rules of the Intel"fHltional Covenant on Economic, Social and CutturCll Rights ••• "Should the Human Rights Committee take the view that article 26 of the International Covenant on Civil and POlitical Rights ought to be interpreted more brOAdly, thus that this articl~ is applicable to complaints concerning discrimination in the field of social security, the Government would observe that in that case article 26 must also be interpreted in the light of other comparable United Nations Conventions laying down obligations to combat Clnd eliminate discrimination in the field of economic, social and cultutal riqhts. The Government would particularly point to the IntE:'rn~tio.,al Convention on the Elimination of All Forms of Hacial Discrimination and the Convention on the ~limination of All Forms of Discrimination against Women. "If article 26 of the International Covenant on Civil and Political Rights were deemed appl icable to complaints concerning d~.scriminatory elements in national legislation in the field of those conventions, this could surely not be taken to mean that a State party would be required to have eliminated all possible discriminatory elements from its legislation in thO!1C fioldfl at the timo of ratification of the Covonant. Years of work are required in order to examine the whole complox of natiol.al legislation in aearch of di9criminatory oloments. The saarch can novor be completed, eithor, au rliRtinctions in legislation which are 1untifiahle in the light of social views and conditions provailing whon thoy ,HO first made may bocomo (lisputablo ao changes occur in the view9 held in socioty '0' "If the Human Riqht9 Committee Bhould docidt~ that article 26 of the lnternational Covenant on Civil and Political Hights entailR obligatinno with ruqard to legislation in the economic, social and cllltural field, such ohli.qationo could, in the Govornment'B vinw, not cumpt"iHc more than an ohliqation of Statea to subject naHon<.ll leqiBllltion to poriodic examination aftHr ratification of tho Covonant with a view to Ronking out discriminatory elements and, if they are found, to proqru8sively taking moanuroa to eliminate them to the maximum of the Stato'o av~ilahlo rH90urCOA. Such oxaminationn arc under way in the Nothorlunds with regard to variuuo aopoct9 of dincrimination, including dhwt"imination between mon and woman. lilt the Human IHghts Committoe c:iCcepUi tho above connideratiollfl, Mr. Ilannl.nq'fl claim that the Netlwrlandn 11.11'1 violatHd articl,~ 26 of the Covnnal',t ueemn to be i ll-foundod. 11 thereby makinq themselves 9uhj$ct either to one set of laws or to another. The differences between the two are considerable, the cohabitation of married parsons is subject to much greater legal regUlation than is the cohabitation of unmarried persons. A married person is, for example, obliged to provide for his or her spouse's maintenance, the spouse ls also jointly liable for debts incurred in respect of common property, a married pelson also requires the permission or co-operation of his or her spouse for certain undertakings, such as buying goods on hire purchase which would normally be considered a part of the household, transac~ions relating to the matrimonial home, etc. The Civil Code contains extensive regUlations governing matrimonial law concerning property. The Leqal consequences of ending a marriaqe by divorce are also the subject of a large number of provisions in the Civil Code, including a provision allowing the imposition of a maintenance allowance payable to the former spouse. The law of inherit~nce, too, la totally geared to the individuals' formal status. The Governm~nt cannot accept that the differences in treatment by the Netherlands law, described above, between married and unmarried cohabitants could be considered to be 'discrimination' within the legal meaning of that term under artiCle 26 of the Covenant. There is no question of 'equal cases' being treated dirferently under the law. There is an objective justification for the differences in the legal ?osition of married and unmarried cohabitants, provided for by the Netherlands legislat ion."
In his comments, d~ted 2~ June 1986, the ~uthor welcomes the forthcoming changes in the General Disablement Benefits Act (AAW) and the DiRahility Insurance Act (WAOI, ment ioned in tha State party's submission. However, he notee that whill! he understands that it is not possible for the Netherlands Government to bring into effect immediately all desired chanqeA to the ex."tinq ldws, "individuals should not Buffer aB a consequence of not beio,. able to benefit from propoBed changes in the legislation which are ahout to affect their ~ituation." !fe claims that the 6xi*tiny law is "cle~rly discriminatory" and that article 26 of the Covenant applies becauBe thfl differentiation hetween m.Arried ",nd llnmarr~eit couples is discrimina:ory in it8~lf.
T~e Human Rights Committfle has conHidpred the present com~unicatior. in the li(.Jht ef all informatioll made avai lahle to it by the parties, as provided in ~rticle ~, paragraph 1, of the Optional Protocol. The tdcts of the case are not in dispute.
Article 26 (If the International Covenant on Civil and Political Rights provi:1esI "All persons are e'.'lat he fort! the t.,.w and are discrimination to th" equlIl prc)tection of t.he lllW. shalt prohibit any diHcrimination and qu~rantee to effective protection IIqainst di8crimlnation on any 8ntitl~d without any In th i H reApect, the all persons Hqual and qrollnd such as rac~, Co~enant 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.
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 i.nterpretation" (art. 32 of the Vienna Convention on the Law of Treaties y>. The discussions, at the time of drafting, concerning the question whether the scope of ~rcicle 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.
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 Conven~ion 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 d~rives fL~m 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 al,thoriti~~. Article 26 is thus concerned with the obligations imposed cn States in regard to their legislation and the application there~f.
Although article 26 requires that legislation should prohibit discrimination, it does not of itself cor.tain 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 leg~slation ~ust comply with article 26 of the Covenant.
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 -158-
It therefore remains for the Committee to determine whether the differentiation in Netherlands law at the time In question and aa applied to Mr. Danning conotituted discrimination within the meaning of article 26. In the light of the oxplanations giv9n by the State party with respect to the differences made by Netl1erlandd legislat~.on between married and unmarried couplea (para. 8.4 above), the Committee is per8uade~ that the differentiation oomplained ot by Mr. Danning is baaed on objective and reasonable ortteria. The Committee observes, in this connection, that the deciaion to enter into a leg~l atatua by marriage, which provides, in Nethorlands law, both ror certain benefits and for certain duties and responoihilities, 1ios entirely with t~e cohabiting persona. By choooinq not t~ Ponter into marriage, Mr. Danning and his cohabitant have not, in law, aD9umcd the full extent of the duties and responsibilities incumbent on married coupl~a. Conso4uently, Mr. Danning does not receive the full benefits provided f~r in Nethorlando law for married couples. The Committee conoludes that tho differontiation complained of by Mr. nanning does not constitute discrimination I itl the sense ot: ar tic le 26 of the Covenant.
Tho Human Righto Committee, acting undor article ~, paraqraph 4, of the Optional Protocol to the Intern.tional Covenant on Civil and Political Rights, ia of the ~iew that the facts as submitted do not disclose a violation of 3ny article of the International Covenant on Civil and Political Rights. !/ \Jnited Nationa, ~u(ldiclll Yearbook \969 (United Natlono pUblication, Sa~oH No. E.7l.V.4), p.