It is demonstrated that certain economic, social and cultural rights are judicially enforceable through the right to equality and non-discrimination. One method to achieve this would be an appeal based on Article 26 ICCPR . The Human Rights Committee has pointed out that the non-discrimination clause of Article 26 ICCPR has an independent nature and is not limited to those rights that are provided for in the ICCPR. It can be invoked regarding rights not set out in the ICCPR and may therefore provide protection against discrimination in the enjoyment of economic, social and cultural rights.
In the following case, Ms. Zwaan-de-Vries was denied unemployment benefits on a continuous basis because she was a married woman and was not the family ‘breadwinner’. Married men, however, could receive the same unemployment benefits even if their wives were the principal income earners or ‘breadwinners’.
Zwaan-de Vries v. The Netherlands
Human Rights Committee
Communication No. 182/1984
Views of 9 April 1987
Keywords: prohibition of discrimination on the ground of gender - social security - non-discrimination - objective and reasonable justification
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Views under Article 5, paragraph 4, of the Optional Protocol
1. The author of the communication (initial letter dated 28 September 1984 and subsequent letters of 2 July 1985, 4 and 23 April 1986) is Mrs. F. H. Zwaan-de Vries, a Netherlands national residing in Amsterdam, the Netherlands, who is represented before the Committee by Mr. D. J. van der Vos, head of the Legal Aid Department (Rechtskundige Dienst FNV), Amsterdam.
2.1 The author was born in 1943 and is married to Mr. C. Zwaan. She was employed from early 1977 to 9 February 1979 as a computer operator. Since then she has been unemployed. Under the Unemployment Act she was granted unemployment benefits until 10 October 1979. She subsequently applied for continued support on the basis of the Unemployment Benefits Act (WWV). The Municipality of Amsterdam rejected her application on the ground that she did not meet the requirements because she was a married woman; the refusal was based on section 13, subsection 1 (1), of WWV, which did not apply to married men.
2.2 Thus the author claims to be a victim of a violation by the State party of Article 26 of the International Covenant on Civil and Political Rights , which provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. The author claims that the only reason why she was denied unemployment benefits is because of her sex and marital status and contends that this constitutes discrimination within the scope of Article 26 of the Covenant.
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4.1 In its submission dated 29 May 1985 the State party underlined, inter alia, that:
(a) “The principle that elements of discrimination in the realization of the right to social security are to be eliminated is embodied in Article 9 in conjunction with Articles 2 and 3 of the International Covenant on Economic, Social and Cultural Rights ;
(b) “The Government of the Kingdom of the Netherlands has accepted to implement this principle under the terms of the International Covenant on Economic, Social and Cultural Rights. Under these terms, States parties have undertaken to take steps to the maximum of their available resources with a view to achieving progressively the full realization of the rights recognized in that Covenant (Article2, para. 1);
(c) “The process of gradual realization to the maximum of available resources is well on its way in the Netherlands. Remaining elements of discrimination in the realization of the rights are being and will be gradually eliminated;
(d) “The International Covenant on Economic, Social and Cultural Rights has established its own system for international control of the way in which States parties are fulfilling their obligations. To this end States parties have undertaken to submit to the Economic and Social Council reports on the measures they have adopted and the progress they are making. The Government of the Kingdom of the Netherlands to this end submitted its first report in 1983;”.
8.3 With regard to the scope of Article 26 of the Covenant, 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. Civil and political rights are to be distinguished from economic, social and cultural rights, which are the object of a separate United Nations Covenant, the International Covenant on Economic, Social and Cultural Rights.
“The complaint made in the present case relates to obligations 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 international monitoring of how States parties meet their obligations and deliberately does not provide for an individual complaints procedure.
“The Government considers it incompatible with the aims of both the Covenants and the Optional Protocol that an individual complaint with respect to the right of social security, as referred to in Article 9 of the International Covenant on Economic, Social and Cultural Rights, could be dealt with by the Human Rights Committee by way of an individual complaint under the Optional Protocol based on Article 26 of the International Covenant on Civil and Political Rights.
‘The Netherlands Government reports to the Economic and Social Council on matters concerning the way it is fulfilling its obligations with respect to the right to social security, in accordance with the relevant rules of the International Covenant on Economic, Social and Cultural 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 Article 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 and eliminate discrimination in the field of economic, social and cultural rights. The Government would particularly point to the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.
“If Article 26 of the International Covenant on Civil and Political Rights were deemed applicable to complaints concerning discriminatory 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 those fields at the time of ratification of the Covenant. Years of work are required in order to examine the whole complex of national legislation in search of discriminatory elements. The search can never be completed, either, as distinctions in legislation which are justifiable in the light of social views and conditions prevailing when they are first made may become disputable as changes occur in the views held in society ?
“If the Human Rights Committee should decide that Article 26 of the International Covenant on Civil and Political Rights entails obligations with regard to legislation in the economic, social and cultural field, such obligations could, in the Government’s view, not comprise more than an obligation of States to subject national legislation to periodic examination after ratification of the Covenant with a view to seeking out discriminatory elements and, if they are found, to progressively taking measures to eliminate them to the maxims of the State’s available resources. Such examinations are under way in the Netherlands with regard to various aspects of discrimination, including discrimination between men and women.”
8.4 With regard to the principle of equality laid down in Article 26 of the Covenant in relation to section 13, subsection 1 (1), of WWV in its unamended form, the State party explains the legislative history of WWV and in particular the social justification of the “breadwinner” concept at the time the law was drafted. The State party contends that with the “breadwinner” concept “a proper balance was achieved’ between the limited availability of public funds (which makes it necessary to put them to limited, well-considered and selective use) on the one hand and the Government’s obligation to provide social security on the other. The Government does not accept that the ‘breadwinner’ concept as such was ‘discriminatory’ in the sense that equal cases were treated in an unequal way by law.” Moreover, it is argued that the provisions of WWV “are based on reasonable social and economic considerations which are not discriminatory in origin. The restriction making the provision in question inapplicable to men was inspired not by any desire to discriminate in fayour of men and against women but by the de facto social and economic situation which existed at the time when the Act was passed and which would have made it pointless to declare the provision applicable to men. At the time when Mrs. Zwaan applied for unemployment benefits the de factosituation was not essentially different. There was therefore no violation of Article 26 of the Covenant. This is not altered by the fact that a new social trend has been growing in recent years, which has made it undesirable for the provision to remain in force in the present social context.”
10. The Human Rights Committee has considered the present communication in the light of all information made available to it by the parties, as provided in Article 5 (1) of the Optional Protocol. The facts of the case are not in dispute.
11. Article 26 of the International Covenant on Civil and Political Rights provides:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
12.1 The State party contends that there is considerable overlapping of the provisions of Article 26 with the provisions of Article 2 of the International Covenant on Economic, Social and Cultural Rights. The Committee is of the view that the International Covenant on Civil and Political Rights would still apply even if a particular subject-matter is referred to or covered in other international instruments, for example the International Convention on the Elimination of All Forms of Racial Discrimination , the Convention on the Elimination of All Forms of Discrimination against Women, or, as in the present case, the International Covenant on Economic, Social and Cultural Rights. Notwithstanding the interrelated drafting history of the two Covenants, it remains necessary for the Committee to apply fully the terms of the International Covenant on Civil and Political Rights. The Committee observes in this connection that the provisions of Article 2 of the International Covenant on Economic, Social and Cultural Rights do not detract from the full application of Article 26 of the International Covenant on Civil and Political Rights.
12.2 The Committee has also examined the contention of the State party that Article 26 of the International Covenant on Civil and Political Rights cannot be invoked in respect of a right which is specifically provided for under Article 9 of the International Covenant on Economic, Social and Cultural Rights (social security, including social insurance). In so doing, the Committee has 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 interpretation’ (Article32 of the Vienna Convention on the Law of Treaties). The discussions, at the time of drafting, concerning the question whether the scope of Article 26 extended to rights not otherwise guaranteed by the Covenant, were inconclusive and cannot alter the conclusion arrived at by the ordinary means of interpretation referred to in paragraph 12.3 below.
12.3 For the purpose of determining the scope of Article 26, the Committee has taken into account the ‘ordinary meaning’ of each element of the Article in its context and in the light of its object and purpose (Article31 of the Vienna Convention on the Law of Treaties). The Committee begins by noting that Article 26 does not merely duplicate the guarantees already provided for in Article 2. It derives from the principle of equal protection of the law without discrimination, as contained in Article 7 of the Universal Declaration of Human Rights , which prohibits discrimination in law or in practice in any field regulated and protected by public authorities. Article 26 is thus concerned with the obligations imposed on States in regard to their legislation and the application thereof.
12.4 Although Article 26 requires that legislation should prohibit discrimination, it does not of itself contain any obligation with respect to the matters that may be provided for by legislation. Thus it does not, for example, require any State to enact legislation to provide for social security. However, when such legislation is adopted in the exercise of a State’s sovereign power, then such legislation must comply with Article 26 of the Covenant.
12.5 The Committee observes in this connection that what is at issue is not whether or not social security should be progressively established in the Netherlands but whether the legislation providing for social security violates the prohibition against discrimination contained in Article 26 of the International Covenant on Civil and Political Rights and the guarantee given therein to all persons regarding equal and effective protection against discrimination.
13. The right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of Article 26.
14. It therefore remains for the Committee to determine whether the differentiation in Netherlands law at the time in question and as applied to Mrs. Zwaan-de Vries constituted discrimination within the meaning of Article 26. The Committee notes that in Netherlands law the provisions of Articles 84 and 85 of the Netherlands Civil Code imposes equal rights and obligations on both spouses with regard to their joint income. Under section 13, subsection 1 (1), of the Unemployment Benefits Act (WWV) a married woman, in order to receive WWV benefits, had to prove that she was a ‘breadwinner’ - a condition that did not apply to married men. Thus a differentiation which appears on one level to be one of status is in fact one of sex, placing married women at a disadvantage compared with married men. Such a differentiation is not reasonable, and this seems to have been effectively acknowledged even by the State party by the enactment of a change in the law on 29 April 1985, with retroactive effect to 23 December 1984 (see para. 4.5 above).
15. The circumstances in which Mrs. Zwaan-de Vries found herself at the material time and the application of the then valid Netherlands law made her a victim of a violation, based on sex, of Article 26 of the International Covenant on Civil and Political Rights, because she was denied a social security benefit on 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 the discriminatory provisions in the law applied to Mrs. Zwaan-de Vries have, subsequently, been eliminated. Although the State party has thus taken the necessary measures to put an end to the kind of discrimination suffered by Mrs. Zwaan-de Vries at the time complained of, the Committee is of the view that the State party should offer Mrs. Zwaan-de Vries an appropriate remedy.’
Comment
It is important to highlight that in this case, the state party argued that Article 26 overlaps with the provision of Article 2(2) of the ICESCR. Therefore, its argument stated that if Article 2(2) and Article 9 of the ICESCR are not justiciable within that Covenant (in the sense that they are not subject to the same kind of petition procedure available under the ICCPR), they should not be rendered justiciable by means of an interpretation which imports them into Article 26 of the ICCPR. Refusing to accept this argument, the Human Rights Committee implicitly rejected that what is protected within ICESCR cannot be protected by the ICCPR. On the contrary, the Committee held that ‘the provisions of Article 2 of the ICESCR do not retract from the full applications of Article 26 of the ICCPR’.
Mr. Waldman, a Canadian citizen residing in the province of Ontario was the father of two school-age children and a member of the Jewish faith who enrolled his children in a private Jewish day school. In the province of Ontario, Roman Catholic schools were the only non-secular schools receiving full and direct public funding. Other religious schools were funded through private sources, including the charging of tuition fees. He claimed to be a victim of a violation of Article 26, and Articles 18(1), 18(4) and 27 taken in conjunction with Article 2(1).
Waldman v. Canada
Human Rights Committee
Communication No. 694/1996
Views of 3 November 1999
Keywords: non-discrimination – education - public funding
Issues and proceedings before the Committee
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10.2 The issue before the Committee is whether public funding for Roman Catholic schools, but not for schools of the author’s religion, which results in him having to meet the full cost of education in a religious school, constitutes a violation of the author’s rights under the Covenant.
10.3 The State party has argued that no discrimination has occurred, since the distinction is based on objective and reasonable criteria: the privileged treatment of Roman Catholic schools is enshrined in the Constitution; as Roman Catholic schools are incorporated as a distinct part of the public school system, the differentiation is between private and public schools, not between private Roman Catholic schools and private schools of other denominations; and the aims of the public secular education system are compatible with the Covenant.
10.4 The Committee begins by noting that the fact that a distinction is enshrined in the Constitution does not render it reasonable and objective. In the instant case, the distinction was made in 1867 to protect the Roman Catholics in Ontario. The material before the Committee does not show that members of the Roman Catholic community or any identifiable section of that community are now in a disadvantaged position compared to those members of the Jewish community that wish to secure the education of their children in religious schools. Accordingly, the Committee rejects the State party’s argument that the preferential treatment of Roman Catholic schools is non discriminatory because of its Constitutional obligation.
10.5 With regard to the State party’s argument that it is reasonable to differentiate in the allocation of public funds between private and public schools, the Committee notes that it is not possible for members of religious denominations other than Roman Catholic to have their religious schools incorporated within the public school system. In the instant case, the author has sent his children to a private religious school, not because he wishes a private non-Government dependent education for his children, but because the publicly funded school system makes no provision for his religious denomination, whereas publicly funded religious schools are available to members of the Roman Catholic faith. On the basis of the facts before it, the Committee considers that the differences in treatment between Roman Catholic religious schools, which are publicly funded as a distinct part of the public education system, and schools of the author’s religion, which are private by necessity, cannot be considered reasonable and objective.
10.6 The Committee has noted the State party’s argument that the aims of the State party’s secular public education system are compatible with the principle of non discrimination laid down in the Covenant. The Committee does not take issue with this argument but notes, however, that the proclaimed aims of the system do not justify the exclusive funding of Roman Catholic religious schools. It has also noted the author’s submission that the public school system in Ontario would have greater resources if the Government would cease funding any religious schools. In this context, the Committee observes that the Covenant does not oblige States parties to fund schools which are established on a religious basis. However, if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination. This means that providing funding for the schools of one religious group and not for another must be based on reasonable and objective criteria. In the instant case, the Committee concludes that the material before it does not show that the differential treatment between the Roman Catholic faith and the author’s religious denomination is based on such criteria. Consequently, there has been a violation of the author’s rights under article 26 of the Covenant to equal and effective protection against discrimination.
10.7 The Committee has noted the author’s arguments that the same facts also constitute a violation of articles 18 and 27, read in conjunction with article 2(1) of the Covenant. The Committee is of the opinion that in view of its conclusions in regard to article 26, no additional issue arises for its consideration under articles 18, 27 and 2(1) of the Covenant.
11. 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 before it disclose a violation of article 26 of the Covenant.
12. Under article 2, paragraph 3(a), of the Covenant, the State party is under the obligation to provide an effective remedy, that will eliminate this discrimination.
Comment
The Committee’s finding in this case regarding the violation of Article 26 ICCPR is directly linked with the right to education. Although the Committee did not address the right to have access to education, it considered that legislation providing for public funding to Roman Catholic schools but not to schools of other religions was discriminatory. The Committee found it discriminatory treatment that the system of public schools provided for religious instruction in only one religion (Roman Catholic), leaving the adherents of other religious denominations to arrange for their religious education either outside school hours or by establishing private religious schools. The Committee stated that ‘the Covenant does not oblige States Parties to fund schools which are established on a religious basis. However, if a State Party chooses to provide public funding to religious schools, it should make this funding available without discrimination’. Similarly, in Garcia Pons v. Spain (Communication No. 454/1991, Views of 30 October 1995), it was stated that ‘although the right to social security is not protected, as such, in the International Covenant on Civil and Political Rights, issues under the Covenant may nonetheless arise if the principle of equality contained in articles 14 and 26 of the Covenant is violated.’ (para. 9.3).
Selected additional cases: ECHR: Schuler-Zgraggen v. Switzerland , Application No. 14518/89, Judgement of 24 June 1993;Chapman v. The United Kingdom , Application No. 27238/95, Judgement of 18 January 2001. HRC: Broeks v. The Netherlands ,Communication No. 172/1984, Views of 9 April 1987;Blom v. Sweden , Communication No. 191/1985, Views of 4 April 1988.