children and foster children under the Child
Benefit Act, in particular the requirement that a
foster parent be involved in the upbringing of the
foster children, as a precondition to the granting
of benefits, is unreasonable. In the light of the
explanations given by the State party, the
Committee finds that the distinctions made in the
Child Benefit Act are not incompatible with
article 26 of the Covenant.
6.2
Counsel further argues that it is evident
that this distinction affects foreign employees
working in the Netherlands more than Dutch
residents, since the foreign employees often
choose to leave their family in the country of
origin, while there is no such necessity for Dutch
residents to leave their family abroad. In this
connection, counsel contends that the State party
ignores that the Netherlands is to be considered
an immigration country.
7.5
The distinction made in the Child
Benefit Act between own children and foster
children precludes the granting of benefits for
foster children who are not living with the
applicant foster parent. In this connection, the
authors allege that the application of this
requirement is, in practice, discriminatory, since
it affects migrant workers more than Dutch
nationals. The Committee notes that the authors
have failed to submit substantiation for this claim
and observes, moreover, that the Child Benefit
Act makes no distinction between Dutch
nationals and non-nationals, such as migrant
workers. The Committee considers that the scope
of article 26 of the Covenant does not extend to
differences resulting from the equal application
of common rules in the allocation of benefits.
Examination of the merits
7.1
The Human Rights Committee has
considered the present communications 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.
7.2
The question before the Committee is
whether the authors are victims of a violation of
article 26 of the Covenant, because the
authorities of the Netherlands denied them a
family allowance for certain of their dependants.
7.3
In its constant jurisprudence, the
Committee has held that although a State
party is not required by the Covenant on
Civil and Political Rights to adopt social
security legislation, if it does, such legislation
and the application thereof must comply with
article 26 of the Covenant. The principle of
non-discrimination and equality before the law
implies that any distinctions in the enjoyment of
benefits must be based on reasonable and
objective criteria.3
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
provision of the Covenant.
APPENDIX
7.4
With respect to the Child Benefit Act,
the State party submits that there are objective
differences between one’s own children and
foster children, which justify different treatment
under the Act. The Committee recognizes that
the distinction is objective and need only focus
on the reasonableness criterion. Bearing in mind
that certain limitations in the granting of benefits
may be inevitable, the Committee has considered
whether the distinction between one’s own
Individual opinion submitted by Mr. Kurt
Herndl, Mr. Rein Müllerson, Mr. Birame
N’Diaye and Mr. Waleed Sadi, pursuant to rule
94, paragraph 3, of the Committee’s rules of
procedure,
concerning the Views of the Committee on
communications Nos. 406/1990 and 426/1990,
L. Oulajin and M. Kaiss v. the Netherlands
We concur in the Committee’s finding that
the facts before it do not reveal a violation of article
26 of the Covenant. While referring to the individual
opinion attached to the decision concerning Sprenger
v. the Netherlands (communication No. 395/1990),1
we consider it proper to briefly expand on the
Committee’s rationale, as it appears in these views and
in the Committee’s views on communications
3
See Broeks v. the Netherlands, communication
No. 172/1984, and Zwaan-de-Vries v. the Netherlands,
communication No. 182/1984, Views adopted on
9 April 1987, para. 12.4; Vos v. the Netherlands,
communication No. 218/1986, Views adopted on
29 March 1989, para. 11.3; Pauger v. Austria,
communication No. 415/1990, Views adopted on
26 March 1992, para. 7.2; Sprenger v. the
Netherlands, communication No. 395/1990, Views
adopted on 31 March 1992, para. 7.2.
1
Views adopted on 31 March 1992, forty-fourth
session.
120
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