The author of the communication (initial leHor dated 28 Soptombor 1984 and 8ubpequont letters of 2 July 1985, 4 and 23 April 1986) is Mr8. F. H. Zwaan-dc VdOB, a NetherlandB national rouiding in Amuterdam, thc-, Netherlands, who is represontQd lJcforQ tho Committee by Mt:. D••1. van dC!!r Vos, hOllCt of the Logal Aid Department (Rochtokundi'1o IHanat . 'N), Amr.tordum.
The author wou born in 1943 and i~ rnarriod ". Mr. c. ~waan. Sho wan omploved fron. uarly 1977 to 9 February 1979 Q<J a computer OPfHbltOl". Sinco thon fJhn has boon unemployed. Undor the U"omployment Act sho was gl'ant.ad unolllploynlOnl benofit.~l untIl. It,) OCtoMr 1979. Hhe nubsoquQfltly applied for C'ontinuud support on the baHiv ()f \,'.Q Unemployment Benefits Act (WW\'). The Municipality of AII..itor<lQm rojoctod hor application on the ground that sho did not moot tho requiroments becauso she wan I) married woman, the nitfUBal 'aa basod on Bection 13, oubooctioli 1 (1), of WW, which did not apply to morriod mono
Thus tho author claims to be a viutim of a violation hy the Rt:ato part.y of! arti«Jle 26 of t.he International cuvonant on Chi 1 and political MiqhtB, which provideo that all porscn8 are equal hetore the law and aro ontitlod withQut any dioorimination to the equal prolection of the law. 'rho Iluthol' cldmfl that th" only reaPOn why sho waD denied unemploymont henofi ta la OOCbUUO of hor sex an~' mllt·t tal 1 status and oontends that t.hiu constituteD diucrimination within tho scope of articl~ 26 of tho CO~Qnanl.
The slime matter haa not heen submitted ~or examination tc any other procodure of international investi9ation or settlement.
8y ita deciBion of 16 October 1984, the Workinq Group of the lIuman Riqhto COltwittee transmitted the oOIMlunication under rule 91 of the prC"'1oional rules of procedure, to the State party concerned, requestinq information ~nd observations relevant to the question of admL&ibllity of the communication.
In it9 8ubmis~ion dated 29 May 1985 tho State party underlined, intor alia, that. (8) -Tho prinoiple that elemdnto of discrimination in the r.ealization of the right to social security are to be eliminated i9 embodied in article 9 in conjunotion w(th articles 2 and 3 of the Internet.ional Covenant or Economic, Social Gnd Cultural Rights. (b) -The Govornment of the lCinqdom of the Netherlands haB accepted to implement this principle under the terms of the International Covenant on Econumic, Social and Cultural Rights. Under these terms, States parties have undertaken to tak@ stops to the maximum of their available resourcps with Q viow to achieving proqro90ively the full realization of tho rights recognized in that Covenant (art. 2, pllra. 1). (c) -The prooeao of gradual realization to the maximum of availablo rODourCOB ia well on ita way in thn Netherlands. Romaining olomont~ of discrimination in tho realization of the ri'Jht:.o ate ooing and wHl be qradually oliminated. (<3) -1'ho Intornational Covonant on Economic, Rocial and Cultural Rightn haa oatabUshod ita own lJystem for international oontrol of tho way in which St~tes portion are fUlfilling thoir obliqations. To thio end Statos paction have undertaken to uubmit to thu Economio and Sooial Council roport£. on the m~aatlre9 they havo adol'tod and the progress thoy arc making. 'rho Government of the Kinl:ldom of the Neth~rlandu to this end su~mitted its first report in 1983,-.
Tho Stato party then pauod the qUQution whothor tho way in whioh tho Notherlands was fUlfilling its obligatlono undor articlu 9 in conjunction with artiolQo 2 and 3 of the Int~rnational Covenant on Eco~omic, Rnoial and Cultural Rightu oould OOCOftlO, by way of article 26 of tho Inturtlfttional Covonant on Civil llnd PoUticlll Right-a, the objoot of an Qxamination by tho Human Riqhta Comm1tt~o. The StatQ pai'ty oubmittod th~t that quoRtion wan relevant for tho doci8ion whethor tho communication wao admisoiblo.
... The State party lJtr€lOfJod that it would qroatly bonVlf it. fr.om rocoi vinc) an anUWflr lrom tho Humall ni"htu Commit.toe to t.he quosttt.,., JOOntitml~d in paraqraph 4.2 above. "Since flueh an anawor coul(! haullv be qivon wil"'out: qoinq t nt~ ono aupoct
In case tho r''ml"ittee did not grant th·e requetJt and deolared the oommunioation admissible, the S,ate party reserved the ri9ht to submit, in th~ course of the proceedin~~, observations Whl~h might have an effoot on the question of admissibility.
The St~t:.Q party also indicated that a ohange of legislat.ion had been cldopted recently in the Netherlands, eliminating seotion 13, Bubueotion 1 (1), of the Unemployment Benefito Aot (WWV), whioh was the subject of the author's claim. This is the Act of 29 April 1985, S 230, having a retroaotive effect to 23 Deoember 1984. 4.~ ~he State party confirffied that the author had exhausted domestic rem~ies.
Commenting on the State party's submission under rule 91, the author, in a lette. dated 2 July 1985, contended that th, State party's question to the Commit~ee as well as the answer to it were oompletely irralevant with regard to the admissibility of the communication, because the author's ~omplaint "pe~tains to the failure of the Netherlands to respect article 26 of the International Covenant on Civil and Political Rights. ~B the Netherlands signed and ratified the Optional Protocol to that Covenant, the complainant is by virtue of articles 1 and 2 of the Optional Protocol, entitled to file a complaint with your Committee pertaininq to the non-respect of article 26. Therefore her complaint is admlooible.".
The author further pointed out that, although section 13, sUbseotion 1 (1), of WWV had been eliminated, her oomplaint oonoerned legiolation in force in 1919.* e.l Before conoider.lnq any t;laimo containo(} in a communication, the Human Rights Committee must, in acoordance with rule 87 of its proviuional ruloa of pr~edute, deoide whet-hot or not it is admissible under the Opt.ional Protocol to the Covonant.
Attiolo 5, paro9,aph 2 (8) of th~ Optional Protocol preoludes the Comm1ttee from considoring a communication if the l:JWl\O matter ia being examined under another p(:oooduro of inlernatJ.on.!ll. investigation or oattlement. In thw oonnection the Committeo onaervea that tho examination of Statu rG~~rt8, submitted under articlo 16 of the Intorn~tional ~)venant on Economi~, Sooial and Cultural Rights, dooo not, w~.thirl the I1\Qaninq or article !i, paragraph 2 (8), (.7()Il9t.itute an examination of the "!i·onto matt.er" aD a 014il\I by an indtvldual Ilol~bm1tte~ to th9 HW1l0n Rights CO\Yt1'ilittet> u"der tbe Optional 1'1:otocOl.
The COnlmlttQQ furthQr oIJOtnV98 that a claim sublll1l\:.Qt'! ur,dtu: the Optl.onal Protocol concerning an alloged buuaoh of a provision of t.he International C()vell"nt on Civil and PoUtical Rights h not ncoo8sorUy inoompatiblo with the provioioftlfJ of that COYunant (ooe act.) of th+.i Optional Pr:ot()(Jol), beOaUDQ the faotB alllO .. The Covonant and the Opt iOl1al lJftlt.ocol ~nt8L'ed Ulto [\')rc:e on 11 M3r~h 1979 in rouvoct or the Netherlands.
Artiole 5, paragraph 2 (b), of the Optional Protocol preoludes the Committee from considering a oommunioation unless domestic remedies have been exhausted. The parties to the present oommunioation agree that domestio remedies have been exhausted.
With regard to the State party's inquiry concerning the scope of article 26 of the Internationlll Covenant on Civil and Political Rights, the COl,'mittee dit! not consider it necessary to pronounce on its soope prior to deciding on the admissibility of the oommunioation. However, having regard to the State party's statement (para. ".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.
On 23 July 1984, the Human "ights 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 n~ntha of the date of tranBmittal to it of the decision on admissibility, written explanations or statements clarifying the matter and the .Jeasures, i~ any, that might hove been ta~9n by it.
In its submission under article 4, paragraph 2, of the O~tional Protocol, dated 14 January 1966, the Stata party again objected to the admissibility of the communication, reiterating the 4r~uments advanced in its submission of 29 May 198~.
In diaculJsing the merits of the Cllt!, the State part'.' elucidates first the factual Obckground as follows I ·When Mrs. Zwaan aoplied for WWV benofits in October 1979, section 13, subs&""tion 1 (1), was stUl ftpplic;,ble. This section laid down that wwv benefitQ could not be claimed by those married women who were neither breadwinnero nor permanently separated from their husbands. The concept of 'bre~dwinner' as referred to in section 13, subsection 1 (1), of WWV was of particular significance, and was further 4mplified in statutory instruments based on th0 Act (the last relevant instrument ~in9 the ministerial decree of 5 April 1976, Netherlands Government Ga7ette 1916, 12). Whether a married woman was deemed to be a breadwinner depended, inter alia, on the absolute amOlJnt ef the family's total income and Oil what pl'·.)porHon of it was contributed by the wife. That the conditiors for granting benefits lai~ dClWn in sec::.ion 13, Buboecti<Jn 1 (1), of WWV applied solely to marriad women and not to married men is due to the fact that the provision in question corresponded to the then prevailing views in society in general concernil\9 thp roles of men and women within marriage and society. Virtually all married men who had jobs could be regard~d as their family's br.eadwinner, so that it was unnecessary to check whether they nlet this criterion for the granting of benefits upon becom~ng unemployed. These views have gradually changed in later years. This aspect will be further discussed bolow (see para. 8.4). it into Une with the direotive. Pursuant to t~: - directive the Netherlande Government ftxamined the oriterion for the granting of benefits laid down in seotion 13, subseotion 1 (1), of WWV in the light of the prinoiple of equal treatment of man and women and in the light of the ohanging role p~tterns of SeXOS in the years sinoe about 1960. -Sinoe it could no longer be ausumed as a matter of oourse in the early 1980s that married men with jobs should always be regarded as 'breadwinners', the Netherlands amended seotion 13, subseotion 1 (1), of WWV to meet its obligations under th~ EEC direotive. The amendment oon~istod of tho deletion of seotion 13, subseotion 1 (1), with the result that it beoame possible for married women who were not breadwinners to olaim WWV benefits, while the duration of the benefits, whioh had previousl~ been two years, wae reduoed fo~ people aged under 35. -In view of ohange~ in the status of women - and partioularly married women - in reoent deoa~es, the failure to aw~rd Mrs. Zwaan WWV benefits in 1979 is explioable in hi8~orioal terms. If ahe were to apply for euoh benefits hOW, the result would be dUferent."
With regard to the aoope of artiole 26 01 the Covenant, the State party argues inter alia as follows I liThe 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 oivil and politioal rights. Civil and politic~l rights are to ha distinguished from economio, social ftnd oultural rights, whioh are the objoct of G separate Unit.ed Nations Covenllnt, the International Covenant on Economic, Social and Cultural Rights. -The oomplaint made in the pres~nt oase relates to obligations in the sphere of s~ial 8ecurity, whioh fall under the International Covenant on Economio, Social and Cultural Rights. ArtiJles 2, 3 and 9 of that Covenant are of partioular relevanoe herlt. That Covenant has its own speoific ayatem and 1 ~s own specifio organ for international monitoring of how States parties meet their obligations and deliberately doea not provide for an individual complainto procedure. "''l'he Government conaiders it inoompatible with the aims of both the Covenants and the Optional Protocol that an indivUual oomplaint with respect to the right of aooial security, as referred to in article 9 of the International Covenant on Eoonomio, Social and Cultural Rights, oould be dealt with by the Human Rights Commit.teo by way of an individual complaint under the Option~l Protocol based on article 26 of the International Covenant on Civil and Politioal Righto. "Should the Human Rights CoMmittee take the view that article 26 of tt.e International Covenant on Civil and Political Rights ought to be interpreted more hro~dlYi thus that this article is applicable to complaints concerning discrimination in the field of sveial security, the Governrnel~t would obaerve that in that case article 26 muat also be interpreted in the light of other comrQuble United Nations conventions laying down obligations to combat and elimillate diacdmination in the field of economic, sooial and cultural rights. The Government would partioularly point to the International Convention on the EUmination of All Forma of Racial oiscr imillation and the Convention on the EHminaUon of All Forme of Discrimination against. Women. Mlf article 26 of the Inte:national Covenant on Civil and Politioal IHghtll wore deemed allplicable to complaints concerning discriminatory ele~nts in national legislation in the field of those conventiona, this oould surely nnt be taken to mean th3t a State party would be required to have eUminated all pofJsi~le diBcriminatory elements from its leqislat~on in those fieldo at the time of t~tification of the Cuvenant. Years of work are required in order to examine the whole complex of national legislation in search of diecrilllinatory elements. The search can never be completed, either, as diotinction6 in legislation which are jUBtifiable in the light of social viewB and conditions prevailing when they are first made may become disputable as chango8 occur in the views hold in socioty ••• WIf the HUlnan Righto Committee uhould decide that article 26 of the Intornational Covenant on Civil and l'oUtical Rights entails ohligations with regard to legislation in the economic, social and cultural field, llIuoh obllglltionu could, in the Government's view, not cOI1\1>1.'ioe more than an obligation of Stateu to subject national legislation to perioUic f·xamination art~r raUfication of the Covenant with a view to seeking out discriminatory elomont9 and, if thoy are found, to proqroasively taking measures to eliminate thorn to the maximum of the state's available resources. 9uch examinations are under way in the Netherlands with regard to various aspects of discrimination, including diBcr:iminlltion between men and women."
With regard to the principlo of equality laid down in article 26 of the Covenant in l'fllation to soction 13, 9ubsection 1 (1), of WWV in its unamended form, tho State pal'ty explains the leqialative hilltol V of WWV Qnd f n pdrticular the ROOial. 1ustification of the "breadwinner w concept at the time thq law was drafted. The State party contends that with the "breadwinner· concept wa proper b~lance was achievod betwcen the limited e.vailllbility of public funds (which makes it nccessary to put thorn to limited, well-considered ono selective use) on the one hand and tht! Government's obligation to provide BOclal security on the othor. The Government doou not accept that the 'breadwinner' concept as such WIlS 'discdm1natory' ill the Bonao that equal caaes were treat,.d in an unequal way by lo\l;'.w Morecver, it is argued that the provisions of WWV "are basod on reasonable social and economic con01 "Iorat iOll8 which are not: dilJcdminatory in orig in. 'l'he rosta: iction mak ing tho provision in question lnappli~ahle to mon was inspired nut by any desire to discriminate in favour of men and aqatnfJt women but by the de facto social and economic situation which existed at the time when tha Act was paaoed and which
With referenoe to the deciaiol of the Central Board of Appeal of 1 November 1983, which the author ctitioizuB, the Stato party oontends that "'l'ho obBcu:vation of the Central Board of A\)l)(\a1 that the CovenanlB employ different international oontrol systems ia highly relevant. Not only do partleB to the Covenants report to different united Nations agencies but, above all, thero ls la major differenoe between the Covenants as regards the possibility of complaintn by Status or individuals, which exists only under the International Covenant on C.i.vil and Political Rights. The contraoting parties deliberately ohose to make this difference in international monitoring systems, beoause the nature and substance of social, economic and cUltural rights make them unouitable for judicial review of a complaint lodged by a State ~arty or an indivi~ual."
In her cOlWRents, dated 4 and 23 April 1986, the author reiterates that "article 13, ~ubsootion 1 (1) contains the requiremont or ueing breadwinner for married women only, and not for mal'ried men. This distinotion runo counter to article 26 ot: .. ~.e Covdnant ••• 'l'he observations of the Notherlands Govornmont on viewt:\ in Dociety concerning traditional roleu at' men and women are completely il're1evant to the present case. 1'he question ••• is in fact not whether those roloa could justify the oxistence of al'Ucle 13, subsection 1 (1), of W~V, but whether this article in 1919 constituted an infraction of article 26 of the Covenant ••• The State of the Netherlands is wrong when it takeu the view that the complainant'R view could imply that all diacr iminatory elements ought to have been eliminated from its national legislation at the time of ratification of the Covenant ••• The complainant'a view doeo imply, howover, t.hat ratification enebleu all Netherlando citizens to invoke article 26 of: the Covenant directly ••• if they believe that they ara being discriminated ag/linut. This doea not imply that the International Covenant on l~conomic, 8001<11 and Cult:<.:ral Rights and tho Convent ion on the [nimbi t ion of All. It'orms of Uleo,im:l.raation l.l911ino\: Women have bocomo meaningless. '1'hooe treaties in fact oompol the Net:.herlando to eliminate discriminatory provisions from more specific parts of national legislation."
With respect to the State party's contention that article 26 of.' the Covenant can only 00 invokeu in tho sphore of civil and political rights, tho author claims that thia view is not shared by Netherland courts and that it also "runo counter to the stand taken Gy t.ho Government itself during p/lrliamentary approval. It then atatod that article 26 - as oppalled to article 2, paraqraph 1 - 'alao applied to areas otherwise not covered by the Covenant'".
'1'he author a180 cH OpUt08 the State party's contention that applicabil i ty of article 26 with regard to the right of 000181 security, as referred to in article 9 ot' the International Covenant on Economic, Social and Cultural Rights, woutd be incompatible wi th the ainuJ of both Covenants. The author claims that art ic1e 26 would apply .~() one well-defined aspect of artic10 9 only, which i5 equal troatment befor:o the law, leaving othor important aspects uuch as the level of Gocll'\l security auido". Ir.ternational Covenant on Civil and Political Rights f'''ating that Buch a terme de grace would be applicable only with rc&pect to provisions that are not self-executing, whereas article 26 is in fact :ecognized by the Government and court rulings as self-executing. Tht) author adds that "it can, in fact, be concluded from the travaux pr6E!ratoirea of the International Covenant on Civil and Political Nightu that according to the majority of the Qelegates 'it was essential to permit a cArtain degree of elasticity to the obligations iml~aed on States by the covenant, since al'. States would not be in It position immediately to take the necessary loqioLative or other measures for the inVlemontation of its proviaions'~. !I
'l'he Human Hights Conunittee hus considered the present communication in the light of all informatl~n made available to it by the parties, as provided in article 5 (1) of the Optional Protocol. Tho ~actB of the case are not in diapu~e.
Article 26 of the International Covenant on Civil and Political Rights provides: "All porsons are equal oo1:oru the l.sw and are entitled without !lnv discrimination to the equal protection of the law. III this respocc. the law ohall prohibit any discrimination and guarantee to all persona v4uul an~ effective protection against discrimination on ~ny ground nuch aa race, colour, sex, language, religion, political or othor opinion, national or social origin, property, birth or other status,"
Tho Stute purty contonds that thet:o io (:ono~.derable ()verlappinq of tho pl'ovisiollO of article 26 with the provioiono of: article 2 of the International Covollant on l!:collomic, Social and Cultural rHghto. The COlllmittee io of tho view that the International Covenant on Civil and Political lHghts would atill apply oven if a par.ticular subject-mutter ia ref~rrod to or covere" in other international instrumenta, for exumple the International Convention on the Bl:i.mination of All I!'ormo of ltacial Discdminut ion, the Convent' ,om on the Elimination of All l"ormo of: Diccriminatioll againot Women, or, all in tilo prosont cuno, tho Intornational Covenant on l':conomic, Social and Cultural Righto. Notwithstanding the interrelated drafting history of tho two Covenants, it remains nocesoary fOl' tho Conunitteo to apply fully l:h\) tOl'mu of tho International Covenant on Civil und Polltical llights. '1'he COlllluittoe oboerves in tllio connection that the IJl'oviaiono of article 2 of tho International Coven.:tnt Ul Economic, Social and Cultural Highta do not detract fcom tho full application of artifJle 26 of the International Covenant on Civil and Political Nights.
Tho COlllmitteo has 01100 examined tho contention of the ~tato pal'ty that artiCle 26 of: tho Intornational Covenant on Civil and Political Rights cannot be invoked in respoct at u right which io specifically pro\! luod for under article 9 of tho Intornational Covenant on l!~conomic, Social and Cultural Rights (social f}Ol~Urity, including oocial insurance). In 90 doinq, the Committee hus perused t.he relevant t,l:'UVUUX prc,h)uratoires of the International Covonant on Civil and Political IHqhto, l\al\ll.1ly the oummary recorda of the diI=Jcusoiono that took place in the Commisoion on Human niqhtfJ in 1948, 1949, 1950 and )t)!;2 and in ttw 'rhird COlllmittee inconclusive and cannot alter the conclusion arrived at by the ordinary 11I0l:ln8 of interpretation referred to in paragraph 12.3 below.
For the purpose of determining the scope of article 26, the Committee haB taken into account the "ordinary meaning" of eaoh element of the article in its ,"ontext and in the light of its objoct and purpose (art. 31 of the Vienna Convention on the Law of Tr~aties). The Cmwmittee begins by noting that article 26 doea not merely duplicate the guarantees already provided for in article 2. It derives from the principle of equal protection of the law without discrimination, r., contained in article 7 of the Universal Declarat.it)fl of Human Rights, which prohibits discrimination in law or in practice in any ':1e1d regulated and protected by public authorities. Article 26 is thus concerned "11th tilO obligationu impooed on States in regard to their legl~lation and the application thereof. 12 4 Although article 26 requires that legislation should prohibit discrimination, it does not of itself contain any onligation with respect to the matters thut may be provided for by leg islation. 'l'hus it does not, for example, require any State to &.~'1ct legislation to provide for social security. However, when such legislation io adopted in the exercise of a State's sovereign power, than such legislation muot comply with article 26 of the Covenant. '12. The Committee observes in this connection that what ia at issue ia not whether or. not social security should be progressively established in the Netherlands but whether the legislation providing for social oecurity violates the prohibition ~gainst discrimination contained in article 26 of the Inte;national COVel)ant on Civil and Political Rights an'. the guarantee given therein to all persona regarding equal and effective protect'.ion against discrimlnation.
'l'he right to equaLi.ty before the law and to equul protection of the law without any di9crimination doen not make all differonces of treatment discriminatory. A differentiation baoed on reasonable and objoctive crituria does not amount to prohi,bited discrimination within the moaning of article 26.
It therefore remainR for the Committee to determine whether tho differentiation in Netherlands law at the tima in question and as applied to Mrs. Zwaan-de Vr1es constituted discrimination within t.he moaning ot: article ~6. The Committee notes that in Neth~rlu:\ds law t.he proviaiotla of articles 84 and 85 of the Netherlands Civil Code imposes equal rights and obliglltiol\a on both spousoa with regard to their joint income. Under 90ction 1l, subsection 1 (I), of the Unemployment Benefits Act (WWV) a mat'ded woman, in order to l:ucoive WWV benefits, had to prove that !;lhe was u "1J1'oudwilU101,N - a condition chat: did not apply to married men. Thus a differentiation which appeuro on ono lovel to be one of statue la in fact one ot: sex, placinq married women at a diaudvantaqe compared with married men. Such a differontiutlon is net realJonanle, und this seem3 to have boen effectively acknowledqed even by the State party by the enactment of a chunqo ill I' the law on 29 April 1985, with rotroactive eHect to 23 December 1904 (uee para. 4.5 above).
The Coftwittee notes that the State party had not intended to disoriminate against women and further notea with appreoiation that the disoriminatory proviaions in the law applied to Mrs. Zwaan-de Vries have, subsequently, boen elilninatod. Although the State party has thus taken the neOeSS8!y measures to put an cnd to the kind of disorimination suffered by Mrs. Zwaan-de Vries at the time oompllined of, the Comnlittee is of the view that the State pa~ty shOUld offer Mrs. Zwaan-de Vries an approprial~ remedy. Notes !I Offioial Reoorda of f • Goneral ASBombly, Tenth Session, Annexeo, agenda item 28 (Part 11), document A/2929, chap. V, para. 8. ~ United Nationa, Jurid/,cal Yearbook 1969 (United Nations pUblioation, Sales No. E.7l.V.4), p. 140.