I United Nations
| DOI | 10.1177/016934410702500206 |
| Author | Ineke Boerefijn |
| Date | 01 June 2007 |
| Published date | 01 June 2007 |
| Subject Matter | Part B: Human Rights News |
Netherlands Q uarterly of Human R ights, Vol. 25/2, 289–348, 20 07.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 289
PART B: HUMAN RIGHTS NEWS
I UNITED NATIONS
I B
1. COMMITTEE ON THE ELIMINATION OF
DISCRIMINATION AGAINST WOMEN, 36th SESSION
e Committee on the Elimination of Discrimination Against Women held its 36th
session from 5–25 August 200 6 in New York.
Activities under the I ndividual Complaints Procedure1
Communication No. 3/2006, Nguyen vs the Netherlands , Views of 14 August 2006 (no
violation of Article 11(2)(b))
Ms Nguyen worked as a part-time salaried employee as well as together with her
husband as a co-working spouse in his enterprise. She had two child ren and twice
applied for compensation for loss of income during her matern ity leave. Under the
Dutch Sickness Bene ts Act, she received bene ts to compensate for her loss of
income from her salaried employment during her maternity leave over a period of
16 weeks . e loss of i ncome from the work in her husband’s enterprise could not
be compensated, because t he applicable law, the Invalidity Insurance (Self-Employed
Persons) Act, contains a so-ca lled ‘anti-accumu lation clause’, which allows (in cases
of concurrent claims for maternity bene ts) payment of bene ts only insofar as they
exceeded bene ts payable under the Sickness Bene ts Act. e author’s bene ts
from her work with her spouse did not exceed t hose from her salar ied employment.
Dutch Courts considered that t his did not result in un favourable treatment of
women if compared to men. Ms Nguyen claimed a v iolation of Article 11(2)(b) of the
Women’s Convention. e Committee found no obstacles to the ad missibility of the
communication.
As to Article 11(2)(b), the Committee recalled that the aim of this provision is to
address discri mination against women working in gainf ul employment outside the
home on grounds of pregnancy and ch ildbirth. It found t hat the application of the
1 e Committ ee’s activities under the re porting procedure have be en described in NQHR, Vol. 24,
No. 4, 2006, p. 677.
Human Right s News
290 Intersentia
Invalidity Insurance (Self- Employed Persons) Act was not discrimi natory towards
her as a woman on the grounds laid down i n Article 11(2)(b), namely of marriage or
maternity. e Committee considered that the grounds for t he alleged di erential
treatment had to do with the fac t that she was a sala ried employee and worked as
a co-working spouse in her husband’s enterprise at the same time. It stated that
Article 11(2)(b) obliged States partie s in such cases to introduce maternity leave wit h
pay or comparable socia l bene ts without los s of former employment , seniorit y or
social al lowances. It noted that Article 11(2)(b) did not use the term ‘full ’ pay, nor did it
use ‘ful l compensation for loss of income’ resulting from pregnancy and ch ildbirth.
According to the Committee, the Convention le to States parties a certain
margin of discret ion to devise a system of maternity leave bene ts to ful l Convention
requirements. e Committee noted that the Netherla nds had established di erent
insurance schemes for sel f-employed women and co-working spouses as well as sa laried
women, and that entitlements under both schemes cou ld be claimed simulta neously
and awarded as long as the two toget her did not exceed a speci ed maximum amount.
According to the Committee , it was within t he State party’s margin of d iscretion to
determine the appropriate maternit y bene ts w ithin the meani ng of Article 11(2)(b) of
the Convention for all employed women, with sepa rate rules for self-employed women
that take into account uctuating i ncome and related contributions. It observed
that it was also within the State party’s margin of discretion to apply those rules in
combination to women who are partly se lf-employed and partly salaried workers.
e Committee concluded that the application of the anti-accumulation clause
in the Invalidity Insurance (Self-Employed Persons) Act did not result in any
discrimi natory treatment of Ms Nguyen and did not constitute a violation of her
rights under Art icle 11(2)(b) of the Convention.
ree Com mittee members submitted a dissenting opinion and found a v iolation
of Article 11(2)(b) of the Convention.
Communication No. 4/2004, Szijjarto vs Hungary, Views of 16 August 2006 (violation
of Articles 10(h), 12 and 16(1)(e))
Ms Szijjarto was a Hungarian Roma woman. She went into hospital because she wa s
in labour pain. e doctor found that the foetus had d ied in her womb and informed
her that a caesarea n section needed to be performed immediately in order to remove
the dead foetus. Ms Szijjar to was asked to sign a form consenting to t he caesarean
section. She signe d this, as well as a barely leg ible note that had been hand-writte n by
the doctor, which contained a statement contain ing her consent for sterilisation. e
note used the Latin term for the sterilisation, which t he author did not understand.
Hospital records showed that within 17 minutes of the a mbulance arriv ing at the
hospital, the caesa rean section was per formed, the dead foetus a nd placenta were
removed and the author’s fallopian tubes were tied . Only later, the author learned that
she had been sterilised , which was against her wishes. Before leavi ng the hospital the
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