Quick answer
Yes. In Broeks v. the Netherlands (views adopted on 9 April 1987), the UN Human Rights Committee found that a Dutch unemployment benefit law violated Article 26 of the ICCPR. The law required a married woman, but not a married man, to prove that she was the "breadwinner". Article 26 is a free-standing guarantee of equality before the law and equal protection of the law. It applies to any legislation a State adopts, including social security, even though the Covenant itself does not guarantee a right to social security.
The law: Article 26 ICCPR
Article 26 provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. The law must prohibit discrimination and guarantee 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.
The case
S. W. M. Broeks v. the Netherlands, Communication No. 172/1984, UN Human Rights Committee, views adopted on 9 April 1987. Mrs. Broeks was denied benefits under the Unemployment Benefits Act (WWV). Under section 13(1)(1) of that Act, a married woman had to prove that she was a breadwinner, a condition that did not apply to married men. The Committee held that this was a difference of treatment based on sex, which placed married women at a disadvantage and was not reasonable. Mrs. Broeks was therefore a victim of a violation of Article 26, and the Netherlands should offer her an appropriate remedy.
Essential points
- Autonomous right: Article 26 does not merely repeat Article 2. It concerns the obligations of States regarding their legislation and its application.
- No duty to legislate, but a duty not to discriminate: Article 26 does not oblige a State to create social security at all. However, once such legislation is adopted, it must comply with Article 26.
- Overlap with the ICESCR is no bar: the Netherlands argued that Article 26 could not be invoked for social security, a right specifically provided for in Article 9 of the ICESCR. The Committee rejected this. It held that the ICCPR still applies even where a subject is also covered by another treaty, and that Article 2 of the ICESCR does not detract from the full application of Article 26.
- Not every difference is discrimination: a difference based on reasonable and objective criteria is not prohibited. General Comment No. 18 adds that the aim must also be legitimate under the Covenant.
- Intention is irrelevant: the Committee noted that the State had not intended to discriminate, but still found a violation.
- Later reform: the law was amended on 29 April 1985, with retroactive effect to 23 December 1984. That did not cure the violation Mrs. Broeks had already suffered.
Article 2(1) and Article 26 compared
| Point | Article 2(1) ICCPR | Article 26 ICCPR |
|---|---|---|
| Scope | Non-discrimination in the enjoyment of rights recognised in the Covenant | Equality and non-discrimination in any field regulated and protected by public authorities |
| Nature | Accessory: must be linked to another Covenant right | Autonomous: can be invoked on its own |
| Broeks-type claim (social security) | Not available, since social security is not a Covenant right | Available, as the benefit law itself must not discriminate |
Example
Renu applies for a State benefit. The rules require married women to prove that they support the family, but ask no such proof from married men. Renu cannot say that the ICCPR guarantees this benefit. She can, however, argue that the benefit rule treats her differently because of her sex, without reasonable and objective justification. That is discrimination under Article 26. It does not matter that the officials who handled her application were courteous; the problem lies in the terms of the law.
Indian connection
Students will recognise the same ideas in Article 14 of the Constitution (equality before the law and equal protection of the laws) and Article 15(1) (no discrimination by the State on grounds only of sex, among others). Note, however, that India is not a party to the First Optional Protocol, so a Broeks-type communication cannot be brought against India.
Exam point
Broeks v. the Netherlands (1987): Article 26 ICCPR is an autonomous equality guarantee covering all legislation, including social security. A rule placing a "breadwinner" condition on married women alone was sex discrimination.
Sources and further reading
- Report of the Human Rights Committee, A/42/40 (1987), Annex VIII.B: Broeks v. the Netherlands, Communication No. 172/1984
- Compilation of General Comments, HRI/GEN/1/Rev.9 (Vol. I), including Human Rights Committee General Comment No. 18: Non-discrimination
- International Covenant on Civil and Political Rights: authentic text, UN Treaty Collection
- The Constitution of India (as on 1 May 2024), Legislative Department
