Communication No. 218/1986 : Netherlands. 29/03/89.
CCPR/C/35/D/218/1986. (Jurisprudence)
Convention Abbreviation: CCPR
Human Rights Committee
Thirty-fourth session
ANNEX*
Views of the Human Rights Committee under article 5, paragraph 4,
of the Optional Protocol to the International Covenant on Civil
and Political Rights
Communication No. 218/1986
Submitted by: Hendrika S. Vos (represented by M. E. Diepstraten)
Alleged victim: The author
State party concerned: The Netherlands
Date of Communication: 23 December 1986 (date of initial letter)
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 29 March 1989,
Having concluded its consideration of communication No. 218/1986, submitted
to the Committee by Hendrika S. Vos under the Optional Protocol to the International
Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the
author of the communication and by the State party,
Adopts the following:
Views under article 5, paragraph 4, of the 0ptional Protocol*
1. The author of the communication (initial letter dated 23 December 1986 and
subsequent letters dated 5 and 26 March 1987 and 3 January 1989) is Hendrika
S. Vos, a citizen of the Netherlands, residing in that country. She claims to
be a victim of a violation of article 26 of the International Covenant c Civil
and Political Rights by the Government of the Netherlands. She is represented
by counsel.
2.1 The author states that since 1 October 1976 she had received an allowance
fro the New General Trade Association under the General Disablement Benefits
Act (AAW) but that in May 1979, following the death of her ex-husband (from
whom she had bee divorced in 1957), payment of the disability allowance was
discontinued, in accordance with article 32, subsection 1 (b), of AAW, because
she then became entitled to a payment under the General Widows and Orphans Act
(AWW). Under the latter, she receives some 90 guilders per month less than she
had been receiving under AAW.
2.2 The author states that she first challenged the decision of the New General
Trade Association before the Arnhem Appeals Court, but her claim of being a
victim of discrimination was rejected on 10 March 1980. Thereupon, she lodged
an objection with the same Appeals Court, which rejected it as unfounded by
decision of 23 June 1981. A further appeal was taken to the Central Appeals
Court in which the author invoked the direct application of article 26 of the
Covenant. The court decided against her claim on 1 November 1983. Thus domestic
remedies are said to be exhausted.
2.3 The author had argued before the Netherlands Courts that, whereas a disabled
man whose (former) wife dies retains the right to a disability allowance, article
32 of AAW makes an improper distinction according to sex, in that a disabled
woman whose (former) husband dies does not retain the right to a disability
allowance. Subsection 1 (b) of this article provides:
"1. The employment disability benefit will be withdrawn when:
"...
"(b) a woman, to whom this benefit has been granted, becomes entitled to
a widow's pension or a temporary widow's benefit in compliance with the General
Widows and Orphans Law."
In her specific case she claimed that the application of the law was particularly unjust because she had been divorced from her husband for 22 years and had been providing for her own support when she became disabled. Thus she claims that she should be treated primarily as a disabled person and not as a widow.
2.4 In rejecting the author's claim that she is a victim of discrimination under
'article 26 of the Covenant, the Central Appeals Court, in its decision of 1
November 1983, stated:
"From the wording of these two articles (articles 26 and 2 (1) of the Covenant),
taken conjointly, it is apparent that article 26 is not solely applicable to
the civil and political rights that are recognized by the Covenant. In answer
to the question whether this article is also of significance in connection with
a social security right, as in dispute here, the Court expresses the following
consideration:
"In addition to the Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights was concluded at the same time
and place. The Court is of the opinion that the text and the import of the two
Covenants under consideration here, and the intentions of the States involved
therein, must be taken conjointly, because from the history of the conclusion
of these Covenants it is apparent that the initial plan to conclude a single
covenant was abandoned on the grounds that economic, social and cultural rights
- in contrast to civil and political rights - can generally speaking only gradually
be realized by means of legislation and other executive measures. That the States
involved in those Covenants proceed from this distinction is also apparent from
the fact that the Covenant on Economic, Social and Cultural Rights merely provides
for a so-called reporting system with respect to the fulfilment of the rights
recognized therein whereas the Covenant on Civil and Political Rights also includes
an inter-State complaints system (regulated in article 41 et seq. of the Covenant)
and an individual complaints system (regulated in the Optional Protocol to the
Covenant). Distinguishing criteria connected with existing social structures
which appear also in social security regulations and which are possibly to be
regarded as discriminatory, such as man/woman and married/single, can only gradually
be done away with by means of legislation ... On the basis of the foregoing,
the significance of article 26 of the International Covenant on Civil and Political
Rights in connection with a social security right as in dispute here must be
denied."
2.5 The author claims that the Central Appeals Court incorrectly interpreted
the scope of article 26 of the International Covenant on Civil and Political
Rights and asks the Committee to find that the cessation of the payment to her
of an AAW allowance was a form of discrimination based on sex and marital status
in contravention of article 26 of the Covenant.
3. By its decision of 18 March 1987, the Working Group of the Human Rights Committee
transmitted the communication under rule 91 of the provisional rules of procedure
to the State party concerned,-requesting information and observations relevant
to the question of the admissibility of the communication.
4. In its submission dated 25 June 1987, the State party reserved the right
to submit observations on the merits of the communication which might turn out
to have an effect on the question of admissibility. For this reason the State
party suggested that the Committee might decide to join the question of the
admissibility to the examination of the merits of the communication.
5. The author's deadline for comments on the State party's submission expired
on 4 September 1987. No comments were received from the author.
6.1 Before considering any claims in a communication, the Human Rights Committee
must, in accordance with rule 87 of its provisional rules of procedure, decide
whether or not it is admissible under the Optional Protocol to the Covenant.
6.2 Article 5, paragraph 2 (a), of the Optional Protocol precludes the Committee
from considering a communication if the same matter is being examined under
another procedure of international investigation or settlement. In this connection
the Committee ascertained that the same matter was not being examined under
another procedure of international investigation or settlement.
6.3 Article 5, paragraph 2 (b), of the Optional Protocol precludes the Committee
from considering a communication unless domestic remedies have been exhausted.
In this connection the Committee noted that the author's statement that domestic
remedies had been exhausted remained uncontested.
7. On 24 March 1988, the Human Rights Committee therefore decided that the communication
was admissible. In accordance with article 4 (2) of the Optional Protocol, the
State party was requested to submit to the Committee, within six months of the
date of transmittal to it of the decision on admissibility, written explanations
or statements clarifying the matter and the measures, if any, that me have been
taken by it.
8.1 In its submission under article 4, paragraph 2, of the Optional Protocol,
dated 28 October 1988, the State party, before discussing the merits of the
case, points out that it has taken note of the views of the Committee in communications
CCPR/C/29/D/172/1984, CCPR/C/29/D/180/1984 and CCPR/C/29/D/182/1984 with respect
to the applicability of article 26 of the Covenant in the field of social security
rights and that it reserves its position, notwithstanding the fact that this
aspect is not addressed in its submission.
8.2 In discussing the merits of the case, the State party elucidates first the
relevant Netherlands legislation as follows:
8.3 "Netherlands social security legislation consists of employee insurance
schemes and national insurance schemes; as employee insurance schemes are not
of relevance to the present case, they will be disregarded. The aim of national
insurance schemes is to insure all residents of the Netherlands against the
financial consequences of certain contingencies. The national insurance schemes
concerning survivors, old age and long-term disability guarantee payment of
a benefit related to the statutory minimum wage. The entitlements concerned
are gross benefits. They are set at such a level that, after tax and social
insurance premiums have been deducted from them, net benefits are sufficient
to enable the beneficiary to subsist."
8.4 "The AAW of 11 December 1975 created a national insurance scheme concerning
long-term disability; under the terms of the Act, anybody who has been disabled
for longer than one year is entitled to a basic benefit. If the beneficiary
was employed full-time before becoming unfit for work, full benefit is paid
(equivalent to the subsistence minimum). If the beneficiary is only partially
disabled, the benefit is reduced proportionately; the amount of benefit payable
is also based on the number of hours per week worked before the beneficiary
became disabled. If the amount of AAW benefit payable is less than the subsistence
minimum, as will often be the case if the claimant is only partially disabled
or was working part-time before becoming disabled, supplementary benefit can
be paid under the National Assistance Act (ABW) or Supplements Act (TW)."
8.5 "The AWW of 9 April 1956 created a national insurance scheme which
entitles widows and orphans to receive benefit related to the statutory minimum
wage if their husband or father dies. The rationale underlying the Act is that
after a married man dies his widow may well have insufficient means of subsistence.
At the time when the Act was passed, it was felt that, if there were good reasons
why the widow should not be expected to earn her own living (for example, because
she still had children to look after or because she was too old), it was desirable
to pay her benefit. In some cases, women are eligible for the AWW benefit even
if they have been divorced from the deceased."
8.6 "At the time when the General Widows and Orphans Act was passed, it
was customary for husbands to act as bread-winners for their families, and it
was therefore desirable to make financial provision for dependants in the event
of the bread-winner's premature death. In recent years more married women have
been going out to work and households consisting of unmarried people have increasingly
been granted the same status as traditional families. This being so, the Government
has been studying since the early 1980s ways of amending the AWW; one of the
questions being examined is whether the privileged position enjoyed by women
under the Act is still justified nowadays."
8.7 "It is too early to say what provisions the future Surviving Dependants
Act will contain. As the Netherlands is a member of the European Community,
it will in all events comply with the obligations arising from a European Community
directive which is currently in preparation concerning sexual equality with
regard to provision for survivors; it is expected to be many years before the
directive enters into force. However, it is possible that the Netherlands Government
may make proposals for new legislation on survivors before the European Community
directive is finalized."
8.8 "In a social security system, it is necessary to ensure that individuals
do not qualify for more than one benefit simultaneously under different social
insurance acts, when each such benefit is intended to provide a full income
at subsistence level. The various relevant acts therefore contain provisions
governing entitlements for the eventuality of overlapping entitlements. The
clar of which Mrs. Vos complains - article 32, subsection 1 (b), of the AAW
- falls ir this category. The legislature had to decide whether claimants who
were entitle( to benefits under both the AAW and the AWW should receive benefits
under the one the other, and it was decided that in such cases the AWW benefit
should be paid. The decision to opt for a rule on concurrence as laid down in
article 32, subsection 1 (b), of the AAW is based, inter alia, on practical
considerations with a view to the implementation of the legislation. It is necessary,
for example, to avoid the necessity of entering the person concerned in the
records of two different bodies responsible for paying benefits and to avoid
having to levy income tax in arrears on income from two separate sources."
8.9 "From the point of view of widows, it is, generally speaking, more
advantageous to receive AWW than AAW; if the legislature had decided that the
AAP benefit should have precedence over the AWW benefit, many widows would have
been worse off, because in most cases the AWW benefit exceeds the AAW benefit
payable married women. This is because most married women have worked part-time
and therefore receive only a partial AAW benefit in the event of long-term disability
This is not to say that the rule on concurrence which gives precedence to the
AWW is always advantageous to all widows: it merely benefits the majority of
them. Cases are conceivable in which the award of the AWW benefit instead of
the AAW benefit leads to a slight fall in income. This is evidently so in the
case of Mrs. Vos."
8.10 "However, the fact that, in a particular case, the application of
article 3 subsection 1 (b), of AAW leads to a disadvantageous result for a particular
individual is irrelevant for purposes of assessing whether a form of discriminate
has occurred which is prohibited by article 26 of the International Covenant
on Civil and Political Rights. In this connection, reference may be made to
the Committee's decision in case No. 212/1986 (P.P.C.v. The Netherlands), in
which was found, inter alia, that the scope of article 26 does not extend to
difference of results in the application of common rules in the allocation of
benefits." a/
8.11 Lastly, the Netherlands Government observes that in the course of the review
of the AWW (paras. 8.6 and 8.7), explicit consideration was given to the problem
overlapping entitlements under AAW and AWW.
9.1 With regard to the author's specific complaint in relation to article 26
of the Covenant, the State party contests the contention of Mrs. Vos "that
article subsection 1 (b), of AAW discriminates unjustifiably between the sexes,
because disabled man whose wife (divorced or otherwise) dies retains his right
to disablement benefit whereas a disabled woman whose husband (divorced or otherwise
dies forfeits hers. The difference in position between a disabled widow and
a disabled widower can be explained as follows. The provision which is made
for survivors is not available to men, and the problem of overlapping of benefits
therefore does not arise. Precisely on account of the fact that a disabled man
cannot be eligible for AWW benefit and that the death of his wife therefore
does not affect his AAW benefit, it is impossible to compare the rules of concurrence."
9.2 "By way of illustration of the relative discrimination in favour of
women, which is inherent in the AWW rules, the Netherlands Government would
observe that the favourable treatment which women receive in the Netherlands
under AWW has led some people to suggest that the Act discriminates against
men. This is one of the reasons why a review of AWW is under consideration.
Be that as it may, this is not the point of Mrs. Vos's complaint. In any case,
it should be concluded that the cases to which the applicant refers are not
cases which require equal treatment on the basis of article 26 of the Covenant."
10.1 In her comments, dated 3 January 1989, the author reiterates her view that
the application of article 32, subsection 1 (b), of the General Disablement
Act (AAW) violates article 26 of the Covenant. She also argues that, provided
article 26 is found relevant, then it must be accepted that it has direct effect
from the moment the International Covenant on Civil and Political Rights came
into force. Although she acknowledges that not every inequality constitutes
unlawful discrimination, she contends that since 1979 any existing inequality
in the field of social security can be examined on the basis of article 26 of
the Covenant.
10.2 Contesting the interpretation of article 26 of the Covenant by the Central
Appeals Court, the author argues that it would be incompatible with article
26 to grant the Government additional time to eliminate unlawful discrimination,
and that what is at issue in the communication under consideration is whether
the distinction is acceptable or unacceptable, it being irrelevant whether the
Government after 1979 needed some time to eliminate the alleged distinction.
11.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as provided
in article 5, paragraph 1, of the Optional Protocol.
11.2 The Committee notes that the State party in its submission under article
4, paragraph 2, of the Optional Protocol has reserved its position with respect
to the applicability of article 26 of the Covenant in the field of social security
rights (para. 8.1 above). In this connection, the Committee has already expressed
the view in its case law b/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.
11.3 The Committee further observes that what is at issue is not whether the
State party is required to enact legislation such as the General Disablement
Benefits Act or the General Widows and Orphans Act, but whether this legislation
violates the author's rights contained in article 26 of the International Covenant
on Civil and Political Rights. 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. Further differences in result of the uniform application of laws
do not per se constitute prohibited discrimination.
12. It remains for the Committee to determine whether the disadvantageous treatment
complained of by the author resulted from the application of a discriminatory
statute and thus violated her rights under article 26 of the Covenant. In the
light of the explanations given by the State party with respect to the legislative
history, the purpose and application of the General Disablement Benefits Act
and the General Widows and Orphans Act (paras. 8.3-8.10 above), the Committee
is of the view that the unfavourable result complained of by Mrs. Vos follows
from the application of a uniform rule to avoid overlapping in the allocation
of social security benefits. This rule is based on objective and reasonable
criteria, especially bearing in mind that both statutes under which Mrs. Vos
qualified for benefits aim at ensuring to all persons falling thereunder subsistence
level income. Thus the Committee cannot conclude that Mrs. Vos has been a victim
of discrimination within the meaning of article 26 of the Covenant.
13. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political Rights,
is of the view that the facts as submitted do not disclose a violation of any
article of the International Covenant on Civil and Political Rights.
_______________
* The text of an individual option submitted by Messrs. Francisco Aguilar Urbina
and Bertil Wennergren is appended.
APPENDIX
Individual opinion: submitted by Messrs. Francisco Aguilar Urbina and Bertil
Wennergren pursuant to rule 94. paragraph 3. of the Committee's provisional
rules of procedure, concerning the views of the Committee on communication No.
218/1986, Vos v. the Netherlands
1. Article 26 of the Covenant has been interpreted as providing protection against
discrimination whenever laws differentiating among groups or categories of individuals
do not correspond to objective criteria. It has also been interpreted in the
sense that whenever a difference in treatment does not affect a group of people
but only separate individuals, a provision cannot be deemed discriminatory as
such; negative effects on one individual cannot then be considered to be discrimination
within the scope of article 26.
2. It is self-evident that, as the State party has stressed, in any social security
system it is necessary to ensure that individuals do not qualify for more than
one benefit simultaneously under different social insurance laws. The State
party has admitted that the rule on concurrence which gives precedence to the
General Widows and Orphans Act (AWW) is not always advantageous to all widows.
It might merely benefit a majority of them. Cases are conceivable in which the
award of AWW benefits leads to a decrease in income after cessation of payments
under the General Disablement Benefits Act (AAW); this is evidently what happened
in the case of Mrs. Vos. The State party has also mentioned that in most cases
AWW benefits exceed AAW benefits payable to married women, and that this is
attributable to the fact that most married women have worked only part-time
and therefore receive only partial AAW benefit in the event of long-term disability.
It follows that disabled women with full AAW benefits enjoy higher benefits
than women, disabled or not, who receive full AWW benefits because of their
status as widows.
3. In cases where women receive full pensions under the AAW (being disabled
and having worked full-time previously), if the husband dies, they will be given
the AWW pension instead. This may reduce the level of pension which their physical
needs as disabled persons require and which the General Disablement Benefits
Act had recognized.
4. Article 32 of AAW provides in its subsection 1 (b) that the employment disability
benefit will be withdrawn when a woman to whom this benefit has been granted
becomes entitled to a widow's pension or a temporary widow's benefit pursuant
to the AWW. The State party contends that the legislature had to decide whether
claimants who were entitled to benefits under both the AAW and the AWW should
receive benefits under the one or the other. This is conceivable, but it is
not justifiable that this necessarily should be solved by the introduction of
a clause which does not allow for a modicum of flexibility in its implementation.
An exception should, in our opinion, be made with regard to women who enjoy
full AAW benefits, if such benefits exceed full AWW benefits. By failing to
make such an exception the legislature has created a situation in which disabled
women with full AAW benefits who become widows can no longer be treated on a
par with other disabled women who enjoy full AAW benefits. The case cannot be
considered as affecting only Mrs. Vos, but rather an indeterminate group of
persons who fall in the category of disabled women entitled to full disability
pensions. Moreover, the intention of the legislator to grant maximum protection
to those in need would be violated every time the law is applied in the strict
formal sense as it has been applied in Mrs. Vos's case. The increasing number
of cases such as this one can be inferred from the assertion made by the State
party that it has seen the need to change the legislation since the early 1980s.
5. A differentiation with regard to full AAW benefits among disabled women on
the sole ground of marital status as a widow cannot be said to be based on reasonable
and objective criteria. It therefore constitutes prohibited discrimination within
the meaning of article 26. We note that a review of AWW is under consideration
a: hope that the discriminatory elements will be eliminated and compensation
given to those who have been the victims of unequal treatment.
Notes
a/ CCPR/C/32/D/212/1986, para. 6.2.
b/ CCPR/C/29/D/172/1984., CCPR/C/29/D/180/1984 and CCPR/C/29/D/182/1984.