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1. The author of the
communication, dated 8 March 2001, is Mercedes Carrión Barcaiztegui, a
Spanish national, who claims to be a victim of violations by Spain of
articles 3, 17 and 26 of the International Covenant on Civil and Political
Rights. She is represented by counsel. The Optional Protocol to the Covenant
entered into force for Spain on 25 January 1985.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 Ms. María de la Concepción Barcaiztegui Uhagón [FN1] - the author's aunt
- held the title of Marquise of Tabalosos. By a notarized deed of 20 June
1989, she provided that on her death, her brother Iñigo Barcaiztegui Uhagón
should succeed her as holder of the title. She died on 4 April 1993 without
issue.
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[FN1] Concepción Barcáiztegui Uhagón was the firstborn daughter of José
Barcaíztegui y Manso, the third Marquis of Tabalosos. María Mercedes
Barcáiztegui Uhagón, the author's mother, was his second daughter and Iñigo
Barcaíztegui Uhagón's elder sister. According to the author, Iñigo conceded
the title to his son, Javier Barcaiztegui Uhagón.
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2.2 In February 1994 the author initiated a legal action against her uncle,
Iñigo Barcaiztegui Uhagón, and her cousin, Javier Barcaiztegui Rezola,
claiming the noble title of Marquis of Talabasos. [FN2] The author claimed
the greater right, since she occupied by representation the place of her
mother, Mercedes Barcaiztegui - deceased on 7 September 1990 - who was the
younger sister of Concepción Barcaiztegui y Uhagón and the older sister of
Iñigo Barcaiztegui Uhagón. The author also claims that renunciation of the
title in favour of her uncle supposes a modification of the line of
succession to the noble title and a contravention of the inalienable nature
of titles of nobility.
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[FN2] The author relates that she asked her cousin why her uncle had
conceded the title to him.
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2.3 In response, counsel for the defendants cited, among other arguments,
the fact that regardless of the validity of the transfer, the principle of
male succession remained the preferential criterion for succession to the
Marquisate of Tabalosos, which was governed not by a general norm, but by a
specific act, at the royal prerogative, which did not constitute part of the
legal order.
2.4 In a judgement of 25 November 1998, the Madrid Court of First Instance
dismissed the author's action, finding that the suit concerned a situation
involving collateral relatives of the last holder of the title; the court
abided by the judgement of the Constitutional Court of 3 July 1997, [FN3]
which declared the historical preferential criteria for the transmission of
titles of nobility to be constitutional. These criteria are: firstly, the
degree of kinship; next, sex - precedence of male descendants over female;
and, thirdly, age. With regard to transfer of the title, the Madrid court
determined that it did not represent a modification of the order of
succession to titles of nobility.
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[FN3] This judgement prompted the Supreme Court to modify its jurisprudence,
which had departed from historical precedent with regard to equality of men
and women.
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2.5 The author claims that she has exhausted all remedies, since by virtue
of the judgement of the Constitutional Court of 3 July 1997 no remedy is
available to her. [FN4] However, on 10 December 1998, she appealed before
the National High Court. In her communication she states that despite the
manifest futility of such an appeal, she submitted it with the aim of
preventing her case from becoming res judicata, thereby ensuring the right
to an effective remedy, as provided for in article 2, paragraph 3 (a), of
the Covenant. According to the author, if the Committee decides to accept
her claims, the National High Court could ultimately find in her favour in
her appeal.
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[FN4] Article 38, paragraph 2, of the Constitutional Court Organization Act
provides that "judgements for dismissal of appeals on matters of
constitutionality and in disputes in defence of local autonomy may not be
the subject of any subsequent appeal on the issue by either of these two
means based on the same violation of the same constitutional precept".
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THE COMPLAINT
3.1 The author claims that the facts submitted to the Committee for its
consideration constitute a violation of article 26 of the Covenant, in that
male descendants are given preference as heirs to the detriment of women,
thereby placing women in a situation of unjustified inequality. She argues
that preference for males in succession to titles of nobility is not a mere
custom of a private group, but a precept established in legal norms,
regulated by Spanish laws of 4 May 1948, 11 October 1820 and Partidas
II.XV.II. The author reminds the Committee that Economic and Social Council
resolution 884 (XXXIV) recommends that States ensure that men and women, in
the same degree of relationship to a deceased person, are entitled to equal
shares in the estate and have equal rank in the order of succession. She
maintains that in this case the estate comprises a specific item, namely the
title of nobility, which can be transmitted to one person only, selected on
the basis of the status of firstborn. The author claims that even if article
2 of the Covenant limits its scope to protection against discrimination of
the rights set forth in the Covenant itself, the Committee, in its general
comment No. 18, has taken the view that article 26 does not merely duplicate
the guarantee already provided for in article 2 but provides in itself an
autonomous right, prohibiting discrimination in law or in fact in any field
regulated by public authorities and imposing a duty of protection on them in
that regard.
3.2 The author claims that the facts constitute a violation of article 3 of
the Covenant, in conjunction with articles 17 and 26. She reminds the
Committee that in its general comment No. 28 of March 2000, on article 3, it
drew attention to the fact that inequality in the enjoyment of rights by
women was deeply embedded in tradition, history and culture, including
religious attitudes.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND THE MERITS
4.1 The State party, in its written submission of 14 December 2001, argues
that the communication is inadmissible by virtue of article 2 and article 5,
paragraph 2 (b) of the Optional Protocol, since domestic remedies have not
been exhausted. The State party asserts that the complaint embodies a
contradiction, since the author claims on the one hand that she has
exhausted all domestic remedies, since the judgement by the plenary
Constitutional Court rules out any resubmission of the issue before domestic
courts, yet, on the other hand, states that she filed an appeal with the aim
of rendering effective possible views by the Committee.
4.2 The State party observes that proceedings and the successive appeals
possible are regulated under the Spanish legal regime. In the present case,
after the judgement by the court of first instance, it was possible to
appeal before the Provincial High Court, whose decision could be set aside
on appeal by the Supreme Court; if it was considered that some fundamental
right had been violated, an appeal for protection could be made before the
Constitutional Court. The State party argues that the author is seeking to
incorporate the Committee as an intermediate judicial body between those
existing under Spanish law, thus violating its subsidiary nature and the
legality of domestic proceedings. The State party contends that it is
contrary to law to submit a case before a domestic court and before the
Committee simultaneously, and in this connection refers to the United
Nations Basic Principles on the Independence of the Judiciary, arguing that
to make simultaneous submissions of the complaint is to seek undue
interference by the Committee with a domestic court.
4.3 The State party asserts that the communication fails to substantiate any
violation of article 26, since the use of a title of nobility is merely a
nomen honoris, devoid of legal or material content, and that, furthermore,
the author does not argue a possible inequality before the law or that there
is a violation of articles 3 and 17 of the Covenant, in view of which the
State party contests the admissibility of the communication ratione materiae
in accordance with article 3 of the Optional Protocol.
4.4 The State party refers to the decision by the European Court of Human
Rights of 28 October 1999 that the use of noble titles does not fall within
the scope of article 8 of the European Convention. It argues that while the
name of the applicant does not appear in that decision, the case concerned
the same subject, in view of which it requests the Committee to find the
complaint inadmissible in accordance with article 5, paragraph 2 (a), of the
Optional Protocol.
4.5 In its written submission of 15 April 2002 the State party reiterates
its arguments on inadmissibility, and on the merits recalls that when the
title of nobility in question was granted to the first Marquis of Talabasos,
in 1775, it was not the case that men and women were considered to be born
equal in dignity and rights. The State party argues that nobility is a
historical institution, defined by inequality in rank and rights owing to
the "divine design" of birth, and claims that a title of nobility is not
property, but simply an honour of which use may be made but over which no
one has ownership. Accordingly, succession to the title is by the law of
bloodline, outside the law of inheritance, since the holder succeeding to
the title of nobility does not succeed to the holder most recently deceased,
but to the first holder, the person who attained the honour, with the result
that the applicable rules of succession to use of the title are those
existing in 1775.
4.6 The State party points out to the Committee that the author is disputing
use of the noble title of Marquis of Talabasos, not with a younger brother,
but with her uncle and her first cousin; that she is not the firstborn
daughter of the person who held the title before, but the daughter of the
sister of the deceased holder, who was indeed the "firstborn female
descendant" according to the genealogical tree provided by the author
herself; the State party also notes that her sex did not prevent the
deceased holder from succeeding to the title before her younger brother.
4.7 The State party affirms that the rules of succession for use of the
title of nobility in question are those established in Law 2 of title XV of
part II of the so-called Código de las partidas (legal code) of 1265, to
which all subsequent laws dealing with the institution of the nobility and
the transfer of the use of noble titles refer. According to the State party
these rules embody a first element of discrimination by reason of birth,
since only a descendant can succeed to the title; a second element of
discrimination lies in birth order, based on the former belief in the better
blood of the firstborn; and, lastly, sex constitutes a third element of
discrimination. The State party contends that the author accepts the first
two elements of discrimination, even basing some of her claims thereon, but
not the third.
4.8 The State party asserts that the Spanish Constitution allows the
continued use of titles of nobility, but only because it views them as a
symbol, devoid of legal or material content, and cites the Constitutional
Court to the effect that if use of a title of nobility meant "a legal
difference in material content, then necessarily the social and legal values
of the Constitution would need to be applied to the institution of the
nobility", and argues that, admitting the continued existence of a
historical institution, discriminatory but lacking material content, there
is no cause to update it by applying constitutional principles. [FN5]
According to the State party, only 11 judgements of the Supreme Court - not
adopted unanimously - have departed from the ancient doctrine of the
historical rules of succession to titles of nobility, as a result of which
the question of constitutionality arose, the matter being decided by the
judgement of the Constitutional Court of 3 July 1997. The State party
affirms that respect for the historical rules of institutions is recognized
by the United Nations and by the seven European States which admit the
institution of nobility with its historical rules, as it does not represent
any inequality before the law, since the law does not recognize that there
is any legal or material content to titles of nobility, in view of which
there can be no violation of article 26 of the Covenant.
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[FN5] The State party cites a case in which the Constitutional Court
rejected an appeal for protection by a person who sought to succeed to a
title of nobility, but did not accept the condition of marrying a noble.
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4.9 The State party contends that use of a title of nobility is not a human
right, or one of the civil and political rights set forth in the Covenant,
and that it cannot therefore be considered part of the right to privacy,
since being part of a family is attested to by the name and surnames, as
regulated under article 53 of the Spanish Civil Register Act and
international agreements. To consider otherwise would lead to various
questions, such as whether those who do not use titles of nobility had no
family identification, or whether relatives in a noble family who did not
succeed to the title would not be identified as members of the family.
According to the State party, inclusion of the use of a title of nobility in
the human right to privacy and to a family would undermine equality of human
beings and the universality of human rights.
AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS
5.1 In her written submission of 1 April 2002 the author reiterates that, in
her case, it was futile to make a further submission to the domestic courts
since article 38, paragraph 2, and article 40, paragraph 2, of the
Constitutional Court Organization Act pre-empt reopening of consideration of
the constitutionality of the Spanish legal system as it relates to
succession to titles of nobility. She emphasizes that she continued with
domestic remedies to avoid the case being declared res judicata, thereby
preventing possible views by the Committee against the State party from
being made effective. She argues that if the Committee found in her favour,
for example, before the Supreme Court concluded its consideration of her
appeal for annulment, she could enter the decision as evidence with
sufficient effect that it would lead to a return to the former jurisprudence
of equality of men and women in succession to titles of nobility, thereby
obtaining effective redress for the harm suffered to her fundamental right
to non-discrimination, that is, recovery of the title. The author further
affirms that in accordance with the Committee's often stated jurisprudence
the victim is not obliged to use remedies that are futile.
5.2 The author claims that the ground for inadmissibility cited by the State
party relating to article 5, paragraph 2 (a), is erroneous, since she was
not a party to the proceedings brought by four Spanish women regarding
succession to titles of nobility before the European Court of Human Rights.
[FN6] The author recalls the Committee's decision in Antonio Sánchez López
v. Spain that the concept of "the same case" should be understood as
including the same claim and the same person.
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[FN6] Case No. 777/1997, decision dated 25 November 1999, para. 6.2.
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5.3 The author alleges a violation of article 3 of the Covenant, in
conjunction with articles 26 and 17, since the sex of a person is an element
in privacy and to accord unfavourable treatment solely by virtue of
belonging to the female sex, irrespective of the nature of the
discrimination, constitutes invasion of the privacy of the individual. She
further argues that the title of nobility is itself an element of the life
of the family to which she belongs.
5.4 In a further written submission of 12 June 2002 the author reiterates
her comments on the admissibility of her complaint and argues in addition
that consideration of her appeal has been unduly delayed, since five years
have elapsed. As to the merits, the author asserts that the Spanish legal
system regulates the use, possession and enjoyment of titles of nobility as
a genuine individual right. While succession to the title occurs with
respect to the founder, succession to concessions of nobility does not arise
until the death of the last holder, and that as a result the laws current at
that time are applicable. The author maintains that while titles of nobility
are governed by special civil norms based on bloodline, that is, outside the
Civil Code with regard to succession, that does not mean that succession to
titles falls outside the law of inheritance by blood relatives.
5.5 The author affirms that, with regard to the rules of succession to
titles of nobility referred to by the State party, in the view of many
theorists and the Supreme Court's own jurisprudence, the rule applies only
to succession to the crown of Spain.
5.6 As for use of a title of nobility not being a human right, as contended
by the State party, the author claims that article 26 of the Covenant
establishes equality of persons before the law and that the State party
violates the article in according, on the one hand, legal recognition of
succession to titles of nobility while, on the other hand, discriminating
against women, in which connection the lack of any financial value of the
titles is without importance since for the holders they possess great
emotional value. The author asserts that the title of Marquis of Tabalosos
is part of the private life of the Carrión Barcaiztegui family, from which
she is descended, and that even if certain family assets may not be
heirlooms owing to being indivisible or having little financial value, they
should enjoy protection from arbitrary interference. Accordingly she
maintains that she is entitled to the protection established under article
3, in conjunction with article 17, of the Covenant, inasmuch as those
provisions prevent discrimination in enjoyment of the rights protected by
the Covenant. The author notes that between 1986 and 1997 the Supreme Court
held that passing over women in the matter of succession to titles of
nobility infringed article 14 of the Constitution, guarantee of equality
before the law, a precedent that was overturned by the Constitutional Court
judgement of 1997.
5.7 The author asserts that the reference by the State party to
discrimination by birth with respect to titles of nobility is erroneous,
since this view would hold that inheritance as a general concept was
discriminatory, and that allegation of discrimination in terms of
descendants was also erroneous, since that allegation referred to a
situation other than that raised by the communication. She adds that
consideration of progeniture in awarding a singular hereditary asset, such
as a title of nobility, is a criterion that does not discriminate against
men or women, or create unjust inequality, given the indivisible and
essentially emotional nature of the inherited asset.
5.8 As for the information transmitted by the State party regarding the
regime governing titles of nobility in other European countries, the author
contends that in those countries the titles have no formal legal
recognition, as they do in Spain, and that as a result any disputes that may
arise in other States are different from that in the present case. What is
at stake is not recognition of titles of nobility, but only an aspect of
such recognition already existing in legislative provisions in Spain, namely
discrimination against women with regard to succession. The author claims
that for the State party the "immaterial" aspect of the title justifies
discrimination against women in terms of succession, without taking account
of the symbolic value of the title and the great emotional value, and that
the precedence of males is an affront to the dignity of women.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
6.2 The State party claims that the author's communication should be
inadmissible on the basis of article 5, paragraph 2 (a), of the Optional
Protocol. In this regard the Committee notes that while the complaint that
was submitted to the European Court of Human Rights concerned alleged
discrimination with regard to succession to titles of nobility, that
complaint did not involve the same person. Accordingly, the Committee
considers that the author's case has not been submitted to another
international procedure of investigation or settlement.
6.3 The State party maintains that the communication should be found
inadmissible, affirming that domestic remedies have not been exhausted.
Nevertheless the Committee notes the author's argument with respect to her
case that any resubmission before domestic courts would be futile, since
article 38, paragraph 2, and article 40, paragraph 2, of the Constitutional
Court Organization Act rule out reopening of consideration of the
constitutionality of the Spanish legal system governing succession to titles
of nobility. Accordingly, the Committee recalls its often stated view that
for a remedy to be exhausted, the possibility of a successful outcome must
exist.
6.4 The Committee notes that while the State party has argued that
hereditary titles of nobility are devoid of any legal and material effect,
they are nevertheless recognized by the State party's laws and authorities,
including its judicial authorities. Recalling its established jurisprudence
[FN7], the Committee reiterates that article 26 of the Covenant is a
free-standing provision which prohibits all discrimination in any sphere
regulated by a State party to the Covenant. However, the Committee considers
that article 26 cannot be invoked in support of claiming a hereditary title
of nobility, an institution that, due to its indivisible and exclusive
nature, lies outside the underlying values behind the principles of equality
before the law and non-discrimination protected by article 26. It therefore
concludes that the author's communication is incompatible ratione materiae
with the provisions of the Covenant, and thus inadmissible pursuant to
article 3 of the Optional Protocol.
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[FN7] See e.g. Views on communication Nº 182/1984 (Zwaan-de Vries vs. The
Netherlands) Views adopted 9 April 1987.
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THE COMMITTEE THEREFORE DECIDES:
(a) That the communication is inadmissible under article 3 of the Optional
Protocol;
(b) That this decision shall be communicated to the State party, to the
author and to her counsel.
___________________________
[Adopted in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
Three separate individual opinions signed by Mr. Rafael Rivas Posada, Mr.
Hipólito Solari Yrigoyen and Ms. Ruth Wedgwood are appended to the present
document.
ANNEX
INDIVIDUAL OPINION BY COMMITTEE MEMBER RAFAEL RIVAS POSADA (DISSENTING)
1. At its meeting on 30 March 2004, the Human Rights Committee decided to
rule communication No 1019/2001 inadmissible under article 3 of the Optional
Protocol. While recalling its consistent jurisprudence that article 26 of
the Covenant is an autonomous provision prohibiting any discrimination in
any area regulated by the State party, it states, in paragraph 6.4 of the
decision, that article 26 "cannot be invoked in support of claiming a
hereditary title of nobility, an institution that,due to its indivisible and
exclusive nature, lies outside the underlying values behind the principles
of equality before the law and non-discrimination protected by article 26".
On the strength of that reasoning, the Committee concludes that the author's
complaint is incompatible ratione materiae with the Covenant and, thus,
inadmissible under article 3 of the Optional Protocol.
2. In her complaint, the author alleges a violation of article 26 by the
State party, pointing out that male descendants are given preference as
heirs to the detriment of women, thereby placing women in a situation of
unjustified inequality. Her application thus relates to discriminatory
treatment she has suffered because of her sex, and the Committee should
accordingly have restrticted itself to considering this key element of her
complaint and not, where admissibility is concerned, gone into other matters
relating to the institution of hereditary titles.
3. The author's claim to be recognised as the heir to a noble title was
based on Spanish law, not a caprice. The law was declared unconstitutional
by a ruling of the Supreme Court on 20 June 1987 insofar as it related to a
preference for the male line in succession to noble titles, i.e. because it
discriminated on grounds of sex. Later, however, on 3 July 1997, the
Constitutional Court found that male primacy in the order of succession to
noble titles as provided for in the Act of 11 October 1820 and the Act of 4
May 1948 was neither discriminatory nor unconstitutional. As such decisions
by the Constitutional Court are binding in Spain, legal discrimination on
grounds of sex in the matter of succession to noble titles was reinstated.
4. The Committee, in deciding to find the communication inadmissible on the
basis of a supposed inconsistency between the author's claim and the
"underlying values behind" (sic) the principles protected by article 26, has
clearly ruled ultra petita, i.e. on a matter not raised by the author. The
author confined herself to complaining of discrimination against her by the
State party on the grounds of her sex; the discrimination in the case before
us was clear, and the Committee should have come to a decision on
admissibility on the strength of the points clearly made in the
communication.
5. Besides ruling ultra petita, the Committee has failed to take account of
a striking feature of the case. Article 26 says that "the law shall prohibit
any discrimination and guarantee to all persons equal and effective
protection against discrimination on any grounds such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status". Yet the law in Spain not only does not
prohibit discrimination on grounds of sex where succession to noble titles
is concerned, it positively requires it. There is, in my opinion, no doubt
that this provision is incompatible with article 26 of the Covenant.
6. For the above reasons I consider that the Committee ought to have found
communication No. 1019/2001 admissible, since it raises issues under article
26, not declare it incompatible ratione materiae with the provisions of the
Covenant.
[Signed] Rafael Rivas Posada
[Adopted in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
INDIVIDUAL OPINION BY COMMITTEE MEMBER HIPÓLITO SOLARI-YRIGOYEN (DISSENTING)
I should like to express the following dissenting views with regard to the
communication under consideration.
THE COMMUNICATION IS ADMISSIBLE
The Committee takes note of the State party's affirmation that, in its
opinion, the rules of succession to titles of nobility embody three elements
of discrimination: the first element stipulates that only a descendant can
succeed to the title; the second element upholds the right of primogeniture;
and the third deals with sex. At the same time, the Committee also takes
note of the author's claims that the State party refers to situations
different from those mentioned in the communication; that primogeniture is
based on the indivisible nature of the title and does not constitute
discrimination because it does not favour men over women; and, lastly, that
the issue at hand is not recognition of titles of nobility but only an
aspect of such recognition, namely discrimination against women, since
Spanish legislation and a judgement of the Constitutional Court uphold the
precedence of males, which is an affront to the dignity of women. The
Committee observes that, in the present communication, the title is being
disputed between collateral relations: the author as the representative of
her deceased mother, and her mother's younger brother, and that the claim
deals exclusively with discrimination on the ground of sex.
The Committee notes that, for the purposes of admissibility, the author has
duly substantiated her claim of discrimination by reason of her sex, which
could raise issues under articles 3, 17 and 26 of the Covenant.
Consequently, the Committee is of the view that the communication is
admissible and proceeds to consider the merits of the communication in
accordance with article 5, paragraph 1, of the Optional Protocol.
CONSIDERATION ON THE MERITS
The ratio decidendi, or the grounds for the decision as to the merits, is
limited to determining whether or not the author was discriminated against
by reason of her sex, in violation of article 26 of the Covenant. The
Committee could not include in its decisions issues that had not been
submitted to it because, if it did so, it would be exceeding its authority
by taking decisions ultra petitio. Consequently, the Committee refrains from
considering the form of government (parliamentary monarchy) adopted by the
State party in article 3 of its Constitution, and the nature and scope of
titles of nobility since these issues are extraneous to the subject of the
communication under consideration; however, the Committee notes that such
titles are governed by law and are subject to regulation and protection by
the authorities at the highest level, since they are awarded by the King
himself who, under the Spanish Constitution, is the head of State (art. 56)
and the sole person authorized to grant such honours in accordance with the
law (art. 62 (f)).
The Committee would be seriously renouncing its specific responsibilities
if, in its observations concerning a communication, it proceeded in the
abstract to exclude from the scope of the Covenant, in the manner of an
actio popularis, sectors or institutions of society, whatever they may be,
instead of examining the situation of each individual case that is submitted
to it for consideration for a possible specific violation of the Covenant
(article 41 of the Covenant and article 1 of the Optional Protocol). If it
adopted such a procedure, it would be granting a kind of immunity from
considering possible cases of discrimination prohibited by article 26 of the
Covenant, since members of such excluded sectors or institutions would be
unprotected.
In the specific case of the present communication, the Committee could not
make a blanket pronouncement against the State party's institution of
hereditary titles of nobility and the law by which that institution is
governed, in order to exclude them from the Covenant and, in particular,
from the scope of article 26, invoking incompatibility ratione materiae,
because this would mean that it was turning a blind eye to the issue of
sex-based discrimination raised in the complaint. The Committee has also
noted that equality before the law and equal protection of the law without
discrimination are not implicit but are expressly recognized and protected
by article 26 of the Covenant with the broad scope that the Committee has
given it, both in its comments on the norm and in its jurisprudence. This
scope, moreover, is based on the clarity of a text that does not admit
restrictive interpretations.
In addition to recognizing the right to non-discrimination on the ground of
sex, article 26 requires States parties to ensure that their laws prohibit
all discrimination in this regard and guarantee all persons equal and
effective protection against such discrimination. The Spanish law on titles
of nobility not only does not recognize the right to non-discrimination on
the ground of sex and does not provide any guarantee for enjoying that right
but imposes de jure discrimination against women, in blatant violation of
article 26 of the Covenant.
In its general comment No. 18 on non-discrimination, the Human Rights
Committee stated:
- "While article 2 limits the scope of the rights to be protected against
discrimination to those provided for in the Covenant, article 26 does not
specify such limitations. That is to say, article 26 provides that all
persons are equal before the law and are entitled to equal protection of the
law without discrimination, and that the law shall guarantee to all persons
equal and effective protection against discrimination on any of the
enumerated grounds. In the view of the Committee, article 26 does not merely
duplicate the guarantee already provided for in article 2 but provides in
itself an autonomous right. It prohibits discrimination in law or in fact in
any field regulated and protected by public authorities. Article 26 is
therefore concerned with the obligations imposed on States parties in regard
to their legislation and the application thereof. Thus, when legislation is
adopted by a State party, it must comply with the requirement of article 26
that its content should not be discriminatory."
At the same time, in its general comment No. 28 on equality of rights
between men and women, the Committee stated:
- "Inequality in the enjoyment of rights by women throughout the world is
deeply embedded in tradition, history and culture, including religious
attitudes. The subordinate role of women in some countries is illustrated by
the high incidence of prenatal sex selection and abortion of female foetuses.
States parties should ensure that traditional, historical, religious or
cultural attitudes are not used to justify violations of women's right to
equality before the law and to equal enjoyment of all Covenant rights."
With regard to the prohibition of discrimination against women contained in
article 26, the same general comment does not exclude in its application any
field or area, as is made clear by the following statements contained in
paragraph 31:
-"The right to equality before the law and freedom from discrimination,
protected by article 26, requires States to act against discrimination by
public and private agencies in all fields."
- "States parties should review their legislation and practices and take the
lead in implementing all measures necessary to eliminate discrimination
against women in all fields."
The Human Rights Committee's clear and unambiguous position in favour of
equal rights between men and women, which requires States parties to amend
their legislation and practices, should cause no surprise in a United
Nations treaty body, since the Organization's Charter, signed in San
Francisco on 26 June 1945, reaffirms in its preamble faith in the equal
rights of men and women as one of its fundamental objectives. However,
history has shown that, in spite of the efforts that the recognition of
rights requires, the most arduous task is to put them into practice, and
that ongoing measures must be taken to ensure their effective
implementation.
In the communication under consideration, María de la Concepción
Barcaiztegui Uhagón, the previous holder of the disputed title of marquis,
transferred her hereditary title of nobility to her brother Íñigo and,
without entering into a consideration of the validity of the transfer, the
Committee notes that, when María de la Concepción Barcaiztegui Uhagón died
on 4 April 1993 without issue, the author, as the representative of her
deceased mother, met the criterion of primogeniture. Believing that she had
the better right, she initiated a legal action against her uncle, claiming
the noble title of Marquis of Talabasos. Madrid Court of First Instance No.
18 dismissed the author's claim on the basis of the binding jurisprudence of
the Constitutional Court which, in a divided judgement issued on 3 July
1997, ruled by majority that the better rights that the law grants to men
over women of equal lineage and kinship in the normal order of transfer
mortis causa of titles of nobility are not discriminatory or in violation of
article 14 of the Spanish Constitution of 27 December 1978, which is still
in force, "since it declares that historical rights are applicable". The
aforementioned article of the Constitution provides that Spaniards are equal
before the law.
Although the right to titles of nobility is not a human right protected by
the Covenant, as the State party rightly contends, the legislation of States
parties must not deviate from article 26. It is true that, as the Committee
has pointed out in its jurisprudence, a difference in treatment based on
arguments, including sex, of relevance to the purposes of article 26 does
not constitute prohibited discrimination provided that it is based on
reasonable and objective criteria. However, the establishment of the
superiority of men over women, which is tantamount to saying that women are
inferior to men, in matters of succession to titles of nobility governed by
Spanish law and implemented by its courts, would not only deviate from such
criteria but would be going to the opposite extreme. While States are
allowed to grant legal protection to their historical traditions and
institutions, they must do so in conformity with the requirements of article
26 of the Covenant.
The Committee is of the view that, in ruling legally that a particular
honour should be granted principally to men and only accessorily to women,
the State party is taking a discriminatory position vis-à-vis women of noble
families that cannot be justified by reference to historical traditions or
historical rights or on any other grounds. The Committee therefore concludes
that the ban on sexual discrimination established by virtue of article 26 of
the Covenant has been violated in the author's case. This being so, it is
unnecessary to consider whether there may have been a violation of article
17 in conjunction with article 3 of the Covenant.
The Human Rights Committee, acting in accordance with 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 disclose a
violation of article 26 of the Covenant with respect to Mercedes Carrión
Barcaiztegui.
(Signed): Hipólito Solari-Yrigoyen
[Adopted in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
INDIVIDUAL OPINION BY COMMITTEE MEMBER, MS. RUTH WEDGWOOD
In its review of country reports, as well as in its views on individual
communications, the Human Rights Committee has upheld the rights of women to
equal protection of the law, even in circumstances where compliance will
require significant changes in local practice. It is thus troubling to see
the Committee dismiss so cavalierly the communication of Mercedes Carrión
Barcaiztegui.
The distribution of family titles in Spain is regulated by public law.
Decisions on succession to titles of honor or nobility are published as
official acts of state in the Boletin Oficial del Estado. The order of
succession is not a matter of private preference of the current titleholder
Rather, female descendants are statutorily barred from any senior claim to a
title, pursuant to the preference for males regardless of the wishes of the
ascendant titleholder. Such a statutory rule, see statute of 4 June 1948,
would seem to be a public act of discrimination.
The Committee's stated reasons for dismissing the communication of Ms.
Carrión Barcaiztegui, in her claim to inheritance of the title of the
Marquise of Tabalosos, can give no comfort to the state party. In rejecting
her petition, as inadmissible ratione materiae, the Committee writes that
hereditary titles of nobility are "an institution that … lies outside the
underlying values behind the principles of equality before the law and
non-discrimination protected by article 26." This cryptic sentence could be
read to suggest that the continuation of hereditary titles is itself
incompatible with the Covenant. One hopes that the future jurisprudence of
the Committee will give appropriate weight to the desire of many countries
to preserve the memory of individuals and families who figured prominently
in the building of the national state.
The use of titles can be adapted to take account of the legal equality of
women. Even within the tradition of a title, a change of facts may warrant a
change in discriminatory rules. For example, in an age of national armies,
it is no longer expected that a titleholder must have the ability to fight
on the battlefield. (Admittedly, Jeanne d'Arc might suggest a wider range of
reference as well.)
In its accession to modern human rights treaties, Spain recognized the
difficulties posed by automatic male preference. Spain ratified the
International Covenant on Civil and Political Rights on 27 July 1977. Spain
also approved the Convention on the Elimination of All Forms of
Discrimination Against Women on 16 December 1983. In the latter accession,
Spain made a single reservation that has importance here. Spain noted that
the Convention shall not affect the constitutional provisions concerning
succession to the Spanish crown. This unique protection for royal succession
was not accompanied by any other similar reservation concerning lesser
titles.
Spain did not take any similar reservation to the International Covenant on
Civil and Political Rights in 1977. Still, good practice would suggest that
Spain should be given the benefit of the same reservation in the application
of the Covenant, in light of the Committee's later interpretation of Article
26 as an independent guarantee of equal protection of the law. But the
bottom line is that, even with this reservation, Spain did not attempt to
carve out any special protection to perpetuate gender discrimination in the
distribution of other aristocratic titles.
It is not surprising that a state party should see the inheritance of the
throne as posing a unique question, without intending to perpetuate any
broader practice of placing women last in line. Indeed, we have been
reminded by the incumbent King of Spain that even a singular and traditional
institution such as royalty may be adapted to norms of equality. King Juan
Carlos recently suggested that succession to the throne of Spain should be
recast. Under Juan Carlos' proposal, after his eldest son completes his
reign, the son's first child would succeed to the throne, regardless of
whether the child is a male or a female. In an age when many women have
served as heads of state, this suggestion should seem commendable and
unremarkable.
In its judgement of 20 June 1987, upholding the equal claim of female heirs
to non-royal titles, the Supreme Court of Spain referenced the Convention on
the Elimination of All Forms of Discrimination Against Women, as well as
Article 14 of the 1978 Spanish Constitution. In its future deliberations,
Spain may also wish to reference General Comment No. 18 of the Human Rights
Committee, which states that Article 2 of the Covenant "prohibits
discrimination in law or in fact in any field regulated and protected by
public authorities." And it is worth recalling that under the rules of the
Committee, the disposition of any particular communication does not
constitute a formal precedent in regard to any other communication or review
of country reports.
The hereditary title in question here has been represented by the state
party as "devoid of any material or legal content" and purely nomen honoris
(see paragraphs 4.4 and 4.8 supra). * Thus, it is important to note the
limits of the Committee's instant decision. The Committee's views should not
be taken as sheltering any discriminatory rules of inheritance where real or
chattel property is at stake. In addition, these views do not protect
discrimination concerning traditional heritable offices that may, in some
societies, still carry significant powers of political or judicial
decision-making. We sit as a monitoring committee for an international
covenant, and cannot settle broad rules in disregard of these local facts.
[Signed] Ruth Wedgwood
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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