Applicant claimed that legislation which granted unemployment benefits to married men, but not married women, was discriminatory; Committee held that discriminatory legislation in the field of economic, social and cultural rights can violate right to equality in International Covenant of Civil and Political Rights; Legislation discriminatory on grounds of sex and marital status.
Mrs Zwaan de Wries became unemployed in February 1979 and was granted unemployment benefits until October 1979. But she was denied continued support under the Unemployment Benefits Act (WWV) because she was a married woman and was not the family breadwinner’. Married men could obtain the benefits without the need to prove they were a breadwinner’. Mrs Zwaan de Wries claimed she was denied the benefit because of her sex and marital status and that this amounted to a violation of Article 26, International Covenant on Civil and Political Rights (ICCPR), which provides that all persons are equal before the law and entitled without any discrimination to equal protection of the law. The Government claimed that the prohibition of discrimination in Article 26 did not apply to the economic, social and cultural domain as other international treaties covered these matters (eg the right to social security in the International Covenant on Economic, Social and Cultural Rights). The Committee found that the provisions of the ICCPR must be applied fully on their own terms. Article 26 required that all legislation should not be discriminatory. This did not require a State to provide social security, but only to ensure that any legislation enacted was devoid of discrimination. Discrimination would be found if a differential treatment in law was not based on reasonable and objective criteria. The legislation in this case was discriminatory on the basis of sex since the Act required married women to meet a condition that did not apply to married men recommended that the complainant be offered an appropriate remedy. The Committee took comfort in their conclusion from an amendment in 1985 that removed this condition from the Act.
Keywords: F. H. Zwaan-de Vries v. the Netherlands, Communication No. 182/1984 (9 April 1987), U.N. Doc. Supp. No. 40 (A/42/40) at 160 (1987), Women, Rights
The legislation was amended on 29 April 1985, before the Committee’s view was published, with the elimination of Article 13(1) that required married women prove they were the breadwinner or where permanently separated from their husband.
The case has been widely cited as demonstrating the application of non-discrimination and equality norms to economic and social rights. For a similar case decided by the Committee at the same time see: S. W. M. Brooks v. the Netherlands. The decision also formed the basis for the Human Rights Committee’s General Comment on Article 26 which provides an expansive interpretation of rights to equality and non-discrimination under the ICCPR. More recently, in Young v Australia, the Committee applied the case on access to pensions for same-sex couples.
Advocate: Mr. D. J. van der Vos (Former) Head of the Legal Aid Department (Rechtskundige Dienst FNV) Amsterdam The Netherlands
