APPENDIX
legislation must comply with article 26 of the
Covenant. Equality before the law implies that
any distinctions in the enjoyment of benefits
must be based on reasonable and objective
criteria.2
Individual opinion submitted by Mr.Nisuke Ando, Mr.
Kurt Herndl and Mr. Birame Ndiaye,
pursuant to rule 94, paragraph 3, of the Committee’s
rules of procedure,
concerning the Views of the Committee on
communication No. 395/1990,
M. Th. Sprenger v. the Netherlands
7.3
In the instant case, the State party
submits that there are objective differences
between married and unmarried couples, which
justify different treatment. In this context the
State party refers to the Committee’s views in
Dannina v. the Netherlands, in which a
difference of treatment between married and
unmarried couples was found not to constitute
discrimination within the meaning of article 26
of the Covenant.
We concur in the Committee's finding
that the facts before it do not reveal a violation of
article 26 of the Covenant. We further believe that
this is an appropriate case to expand on the
Committee's rationale, as it appears in these Views
and in the Committee's Views in Communications
Nos. 180/1984, Danning v. the Netherlands and
182/1984, Zwaan-de Vries v. the Netherlands.1
7.4
The Committee recalls that its
jurisprudence permits differential treatment only
if the grounds therefore are reasonable and
objective. Social developments occur within
States parties and the Committee has in this
context taken note of recent legislation reflecting
these developments, including the amendments
to the Health Insurance Act. The Committee has
also noted the explanation of the State party that
there has been no general abolition of the
distinction between married persons and
cohabitants, and the reasons given for the
continuation of this distinction. The Committee
finds this differential treatment to be based on
reasonable and objective grounds. The
Committee recalls its findings in Communication
No. 180/1984 and applies them to the present
case.
While it is clear that article 26 of the
Covenant postulates an autonomous right to nondiscrimination, we believe that the implementation of
this right may take different forms, depending
on the nature of the right to which the principle of
non-discrimination is applied.
We note, firstly, that the determination
whether prohibited discrimination within the meaning
of article 26 has occurred depends on complex
considerations, particularly in the field of economic,
social and cultural rights. Social security legislation,
which is intended to achieve aims of social justice,
necessarily must make distinctions. While the aims of
social justice vary from country to country, they must
be compatible with the Covenant. Moreover, whatever
distinctions are made must be based on reasonable and
objective criteria. For instance, a system of
progressive taxation, under which persons with higher
incomes fall into a higher tax bracket and pay a
greater percentage of their income for taxes, does not
entail a violation of article 26 of the Covenant, since
the distinction between higher and lower incomes is
objective and the purpose of more equitable
distribution of wealth is reasonable and compatible
with the aims of the Covenant.
7.5
Finally, the Committee observes that the
decision of a State’s legislature to amend a law
does not imply that the law was necessarily
incompatible with the Covenant: States parties
are free to amend laws that are compatible with
the Covenant, and to go beyond Covenant
obligations in providing additional rights and
benefits not required under the Covenant.
8.
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 do not disclose a violation of any article
of the International Covenant on Civil and
Political Rights.
Surely, it is also necessary to take into
account the reality that the socio-economic and
cultural needs of society are constantly evolving, so
that legislation - in particular in the field of social
security - may well, and often does, lag behind
developments. Accordingly, article 26 of the Covenant
should not be interpreted as requiring absolute
equality or non-discrimination in that field at all times;
instead, it should be seen as a general undertaking on
the part of the States parties to the Covenant to
2
See ibid,, sect. B, Broeks v. the Netherlands,
communication No. 172/1984; and ibid., sect. D,
Zwaan-de Vries v. the Netherlands, communication
No. 182/1984, Views adopted on 9 April 1987.
1
See Official Records of the General Assembly,
Forty-second Session, Supplement No. 40 (A/42/40),
annex VIII, sects. C and D, Views adopted on 9 April
1987.
115
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