With ~e.pect to the requirement ot exhaultion of dom,.tic ~ernedie. under article 5, paragraph l (b), of tho Optional Protocol, th~ CO~littee ha. noted the letter from the author', counlel, dated 11 October 1981, indicating that the JUdicial Committee of the Privy Council granted the author'. petition for special leave to appeal and would conduct a hQaring on the merits of the caae at a date to be determined. It thus concludes that one available remedy has not been exhaulted by th. author. Article 5, paragraph 2 (b), however, precludes the Committee from con.idering a comm~nication prior to the exhaultion of all available domestic r_medie••
The Buman Rightl Committee therefore decide. 1 (a) That the communication i. inadmi8sible un~er article 5, paragraph 2 (b), ('f the Optionel Protoc\>l, (b) Thet, .inee this d~ei.ion may be reviewed under rule 02, paragraph 2, of the Committee's provllion&1 rules of pl'ocedure upon recelpt of a written requelt by or on behalf of the author containing information to the effect th~t the rea.~n. for inadmi,.ibility no longer apply, the State party qhall ba requested, taking into account the spirit and purpose of rule 86 of the Committee'8 pr~vi8ional rulel of procedure. not to carry out the deetn lent8nce aqainlt the author bel ore he has hmd a reD80nable time, after compleLing th8 effective dome8tic remedies &vailable to him, to request the Committee to review the present decislonl (c) That. this deci8ion shall be tran8mitted to the State party and to the author. E, comnunicatioD N.o.... ~28/1987.L ..c.. _J..... D. y. fi-A.W:Jl (Deci,ion adopted OD 18 July ~6 at the thirty-third lelsion) Submitted byl C. L. D. [name deleted] Alleged victim. The author. Stat. party cODcernedl rrance DAte of communicatiODI 16 May 1981 (date of initial letter) The Humaa Right. Committe., established under article 28 of the InternatJonal Covenant on Civil and Political Rights, Meeting on 18 July 1988, Adopts the followlngl
In his initial .ubmi••ion, the author states that the French Postal Administration (PTT) ha. refused to i.sue him postal cheque. printed in the Breton language, which he asse~ts is hi, mother tongue. Many persont' in his distLict of residence are said to be rroficient in Breton and numerous employee. of the local postal a~mi~istration process letters addre.sed in Breton. He observes in this connection that other countries have adjusted to multiplG language corre.pondence. In a ~trbs~quent letter of 21 July 1987, the author claims that the refusal by the French fiscal authorities to acknowledge the text of his addr~ss written in Breton also violates the above-mentioned articles of the Covenant. He further a1.lege. that the fact that the fiscal authorities have refu.ed to take into consideration information provided by him in Breton ha. resulted in hi. being a.ked to pay taxe. which do not take into account tax-deductible profe.sional expenses.
With re.pect to the requirement of exhaustion of dome.tic remedie., the author .tate. that he has sought the annulment of a decision of the Regional Chief of the Postal Adminisll'ation in Rennes, dated 27 August 1.985, rejecting his request to have his postal cheque. printeo in Breton. The author states that on 28 October 1985 hft filed an action Ag~lnst the PTT with the hdministrative Tribunal of Renne. with a view to having the above decision rever6ed. With re.pect to the .econd complaint, directed against th~ Ministry of the Economy and Finance, he state. that he filed a complaint with the Administrative Tribunal of Rennes on 21 July 1986. requ••ting the annulment of what hft refers to as the "lmpl1~it rejection of his complaint by the tiscal authorities". A further complaJ. nt submitted to the 8~e tribunal asking for annulment of a requeRt by tho Regional lIead Office of Fi.ca1 Service. (rini.tere) to submit an account of his professional expen.es for 1984 in rrench ratht'r than in Breton was rejected bl' judgllrHJOt of 13 May Hl87.
By a deciaion dated 1 July 1987, addressed to the author only. the Working Group of the Human Rights Committee r"queated further clarification of the .teps tak~n by the author to exhaust domestic remedies after ~is petition of 28 October 1985 to the Administrativft Tribunal.
By a letter dated 30 October 1981. the author replied to the questions posed by the Working Group. He states that he has taken no steps to exhaust domestic remedies after potitioning the Administrative Tribunal on 28 October 1985. With • The text of an individual opinion submitted by Mr. Vojin Dimitrijevic. Mrs. Rosalyn Higqins and Messre. Andreas Mavrommatis. rausto Pocar and Bertil Wennerqren is rep~oduced in appendix I to section E of the pre.ent annex. The text of an individual opinion 8ubmitted by Mr. Birame Ndiaye is reproduced in appendIx I I .
Under cover of a letter dated 6 June 1988, the aathor forwards the tex~8 of two judgement. rendered by the Administrative Tribunal on 26 May 1988, dismissing hi. action. IIIgain.t the PTT alld against the Ministry of the Economy and Finance. The TrIbunal endor••d the conclusion. of t~. repre.entative. of the r1~ end of the Mini.try of the Economy and rinance, copies of which the author forwarde~ under cover of III letter dated 27 June 1988. The author argues that he doe. not lnt~nd to .ppeDl agln.t the.e judgements to the Con.e!l d'Etat, since this would cau.e "con.idllrable delay." and because he i8 convinced that the result would, in any ca.e, not be favourable to him.
Sefore con.ideri~g any claims contained in a communication, the Human Rights Committee must, in acco~dance with rule 87 of its provisional rule. of procedure, decide whether or not it is admi••ible under the Optional Protocol to the Covenant.
The Committee ha. 1118certa~ned, a8 it i8 required to do under article 5, paragraph 2 (a', of the Optional Protocol, that the same matter i. not being examined under another procedure of lnternational lnve.tigation or .ettlement.
With re.pect to the requirement of exhau8tion of doanestic remedles under a~ticle 5, para9raph 2 (b), of the Optional Protocol. the Committee notes that tha author doe. not intend to appeal against the judgements of the Administrative Tribunal of Renne. of 26 May 1988 to the Conseil d'Etat, given the delay. that an appeal would entail and becau•• he believe. that such an appeal would be dismi••ed. The Committee finds, however, that, in the particular circumstances di.clo.ed by the communication, the author'. contention. did not Bbsolve him from the obli~ation to pur.ue remedie. available to him. It conclude. that th~ further pur.uit of the author'. Cb.e could not be de.med a priori futile and observe. that mere doubt. about the .ucce.s of a remedy do not rendet it ineffective and cannot be adm~.tted a. a ju.tification for non-compliance. Unable to find that the application of dome.tic remedies in this caBe ba~ been unrea.onably prolonged, the Committee conclud.s that the requirement of article 5, para9raph 2 (b), of the Optional Protocol ha. not been met.
The Human Rights Committee therefore decidesl (a) That the communication is inadmi.Hiblel (b~ That this decision shall be communicated to ~he author and, tor information, to the State party.
We agree with the d.cision of the Committ•• that the communicetion is inadmi.db,l.e.
Howev.r, in oue opinion, the finding of ioadrni.sibility should be ba,e~ on a~ticl. 3 of the Optional Protocol, rather than articl' ~., pa~.gr.ph 2 (h), th.r.of. Ther. i' an ord.r of priority in those Drticlel, in the .ena. that the initi.l talk of the Committ•• must n.c••••rily b. to a.c.~ts!n whbther a communic.tion .pp.rt.in. to • cl.im which, if prov.d as to itl all.g.d fact~, could .ntail a violation of t ••• Cov.nant. If it could not Intail a violation, b.CDUS. ratioD' mot.ria. it i. not within the Covenant, the communicatio~ will b. haadmhsibl. und.r articl. 3 of the Optional Protocol.
Ev.n if 011 the domostic r.medie. had been exh.udted in r••pect of .uch a claim, it would .till be beyond the competence ot the Committee ration. mat.riae to proc.ed. Thu., although in this preliminary pha•• ot itl work the Committ•• i, not, of cour••, .xamining motterl relating to the merits, it h•• to examin. the claim to .ee whether it 11 "incompatible with the Covenant" that 11, wh.ther or Dot it pot.ntially r.late. to ~ right within the .cope of the Covenant.
In the pr••ent ca86 the claims of the author reveal no fftcts which, even if provftd, could occa.ion • violation ot the Covenant. Nond of the .rtlcle. cited by the uuthor, inclUding article 21, even potentially providft the entitlement to rec.lv. po.tal cheque. or to hav& acknowledgem.nt of one', addr••• in one'. mother tongue. In our vie~, this communication is inadmissible under article 3 ot the Optional Protocol.
We therefore find it inappropriate to proceed to &n examination of the 10ca1 remedies. Nor i. it nece••ary to e.amine whether the declaration of the Government of [ronce m.de upon occ•••ion to the Covenant i. to be interpreted o. a r••ervation or al a declaration simpli~. (Th. relevant ~lau.e stat•• that "in the light of article 2 of the Constitution of the French Republic, the French GovlTlwent declare. that article 27 is not applicable 80 far as the Republic is ~oncerned".) Declarations do not have the lame le9al conaequences as re••rvations. In any ca.e wh.re juriSdiction turned on the effect of a declaration, it would be neces.ary to .e. whether the .tatement of the country ~oncerned was in fa~t, regardle•• of its nomenclature a re.ervation as to the Committee's jurisdiction or a declaration of interpretation by the State p.rty. This is not such a case and no vie is offered here as to the legal effect of th3 French declaration reqardin~ articl,' 21. Vojin Dimitrijevic Rosalyn Hiqqins Andreas Mavrommatis FauBto Pocar 8ertil ~.nner9ren
A deci.ion on the admi••ibility of a communication ~ubmitted to the Committee under the Optional Pr~~ocol to the International Covenant on Civil and Political Rights presuppo.es a prime facie elamination of its content, the competence of the Committee being limited elclu.ively to the tights ~pecified in the Covenant. If the Committle ventured to consider a complaint ba.ed on the alleged viOlation of a right not guaranteed by lbe Covlnant, it would be acting ultra yire.. Given that the competence of the Committee is limited ratiQne motlriae, the Qrder to be followed in elamining the criteria fQr admia.ibility i. ~lOt left purely tQ itB di.cretionl it muat correspond to the progre••ion e.tabli.hed by article. 1, 2 and 3 and reflected in the Committee" rulea of procedure (rule 90). The Committee should not examine the que.tiQn Qf the elhouition of domestic remedies without first considering the questions of the existence of a right guaranteed by the Covenant and a tresty obligation of the State which i, the object of the complaint. In the pre.ent ca.e, however, the Committee proceeded differentlYI it did not begin by aaking whether the communication concerned a right guaranteed by the Covenant before going on tQ .ee whether or not France has an obligation to reapect the provision invoked. WrQngly, the Committee ba.ed it.self forthwith on the non-exhaustion of dome.tic rem,die••
By proceeding in that mann~r. the Committee wa. unable to see that the only right which .eemed to be involved wa. that provided for in article 27. However. article 27 has a prlci•• content. It stipulate. that per~on. belonging to "ethnic, religiou. or lingui.tic minorities ••• Ihall not be denied the right. in community with the other memberl of their group, to enjoy their own culture. to profess and practise their own religion. or to use their own language". Thi' article certainly doe8 not demand of Stato8 parties that th~y require their postal administrations to i~8ue pOltal cheques in a language other t'lan the official language. nor doe. it stipUlate that the authorities .hould accept information provided in another language. The Covenant is indifferent to the centrali.ed or decentrali.ed character of State., to the existence or non-existence of an official l"nguage. By apparently overlooking that point. the Committee arrived at a decision which is all the more open to criticism in that the question of national language. has enormous political significanc. for third world ~tates, particularly in Africa. But whatever its legitimacy. the problem of such languages cannot bft solved by acts of the Conunittee and in any case not beyond the content of article 27. l. The Committee's decision in the C.I.__kL-D. v. [~e case is also or more especially to be regretted in that it haB in no way settled the question of whet.hor or not Frence is a party to article 27. The separability of consent to be bound by an international convention is the rule in internat anal law and its only limits are the rules stipulated in article 19 of the 1969 Vienna Convention on the Law of Treatiess "A State may. when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unlesss "(4) The reservation is prohibited by the treaty I
Upon acce.lion to the International Covenant on Civil and Political Rights, th", Government of the Fren..:h Repul;.\lic declared thata "in the light of article 2 of the Constitution of the French Republic ••• article 27 is not applicable so far as the Republic i. concerned". Clearly France, in baling it.elf on a rule of it. internal law of fundamental importance (Vienna Convention, 1969, art. 46), h~. exclud6d article 27 trom its acceptance. For France, the Covenant ha. 26 articles and no State party has challenged that by objecting to the leservation. Accordingly, it is incomprehensible that the C~mmittee, which of course has no power to object to the reservations of 8tates parties, should have acted as though France was a party to article 2'7. For me, the communication of C. L. D. il inadmissible in the first instance because Franc~ is not a party to article 27 and sUbsoguently because the content of the article is not what the author claims. It was inappropriate to examine the crlterion of exhaustion of domestic remedies, the Committde being incompetent rAtione materiAe.
Unfounded in terms of the Covenant and the Protocol thereto, this decisioll is an inducement to internal and external proceedings which is particularly unjustifiable in that they will achieve nothiny in the Committee. Birame Ndiaye