The authors of the communication (initial letter of lZ Octoher 1985 and subsequent letters of 22 December 1986, 6 June 1987 and 21 July 1988) are Jbrahima Gueye and 742 other retired Senegalese members of the French Army, residing in Senegal. They are represented by counsel.
T.he authors claim to be victims of a violation of article 26 of the Covenant by F[3nCe because of alleged racial discrimination in French legislation, which provides for different treatment in the determination of pensions of retired soldiers of Senegalese nationallty who served in the French Army prior to the independence of Senegal in 1960 and who receive pensions that are inferior to those enjoyed by retired French soldiers of French nationality.
It is stated that, pursuant to Law No. 51-561 of 18 May 1951 and Decree No. 51-590 of 23 May 1951, retired members of the French Army, whether French or Senegalese, were treated equally. The acquired rights of Senegalese retired • Pursuant to rule 84, paragraph 1 (b), of the Committee's provisional rules of procedure, Ms. Christine Chanet did not participate in the adoption of the views of the Committee. Mr. Birame Ndiaye did not participate in the adoption of the views pursuant to rule 85.
The authors state that the laws in question have been challenged before the Administrative Tribunal ot Poitiers, France, which rendered a decision on 22 December 1980 in favour of Dia Abdourahmane, a retired Senegalese soldier, ordering the case to be sent to the French Minister of Finance for purposes of full indemnification since 2 January 1975. The authors enclose a similar decision of the Conseil d'Etat of 22 June 1982 in the case of another Sonegalese soldier. However, these decisions, it is ~lleged, were not implemented, in view of a new French Finance Law No. 81.1179 of 31 December 1981, applied with retroactiv. effect to 1 ,Tanuary 1975, which is said to frustrate any further recourse bef~re the French judicl~l or administrative tribunals.
As to the merits of the case, the authors reject the arguments of the French authorities that allegedly justify the diffarent treatment of retired African (not only SenegalUIJe) soldiers on the grounds ofl (a) their loss of French nationality upon independence I (b) the difficulties for French authorities to establish the identity and the family situation of retired soldiers in African countriesl and (c) the differeuces in the economic, financial and socia3 conditions prevailing in France and in its former colonies.
The authors state that they h~ve not submitted the same matter to any other procedure of international investigation or settlement.
By its decision of 26 March 1986, the Human Rights Committee transmitted the communication under rule 91 of the Committee's provisional rules of procedure to the State party requosting information and observations relevant to the question of the admissibility of the communication.
In its initial submission under rule 91, dated 5 November 1986, the State party describes the factual situation in detail and al'gues that the communication is "inadmissable as being incompatible with th~ provisions of the Covenant (art. 3 of the Optional Protocol), additionally, unfounded", because it basically deals with rights that fall outside the scope of the Covenant (i.e. pension rights) and, at any rate, because the contested legislation does not contain any discriminatory provisions within the meaning of article 26 of the Covenant.
In a further submission under rule 91, dated 8 April 1987, the State party invokes the declaration made by the French Government upon ratification of the Optional Protocol on 17 February 1984 and contends that the communication is inadmissible ration. temporiil "France interprets article 1 [of the Optional Protocol] as giving the Committee the competence to receive communications alleging a violation of a right set forth in the Covenant 'which results either from acts, omissions, developments or events occurring after the date on which the Protocol entered into force for the Republic, or from a decision relating to acts, omissions, developments or events after that date'. "However, the statement of the facts contained both in the communication itself and in the initial observations by the French Government indicates that the violation alleged by the authors ot ~he communication derives from Law No. 79.1102 of 21 December 1979, which extended to the nationals of four States formerly belonging to the French Union, including Senegal, the r'gime referred to as 'crystallization' of military pensions that had already applied since 1 January 1961 to the nationals of the other States concerned. "Since this act occurred before ratification by France of the Optional Protocol, it cannot therefore provide grounds for a communication based on its alleged incompatibility with the Covenant unless such communication ignores the effect ratiQne temporis which France cQnierred Qn its recognition Qf the right of individual communication."
In their comments of 22 December 1986, the authors argue that the communication should not be declared inadmissible pursuant to article 3 of the Optional Protocol as incompatible with the provisions of the Covenant, since a broad interpretation of article 26 of the Covenant would permit the Committee to review questions of pension rights if there is discriminatiQn, as claimed in this case.
In their further comments of 6 June 1987, the authors mention that although the relevant French legislation pre-dates the entry into force of the Optional Protocol for France, the authors had continued negotiations subsequent to 17 May 1984 and that the final word wa~ spQken by the Minister fQr Economics, Finance and Budget in a letter addressed to the authQrs Qn 12 November 1984. ~.l Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.
With regard to the State party's contention that the communication was inadmissible under artiCle 3 of the Optional Protocol as incompatible with the Covenant, the Committee recalled that it had already decided with respect to prior communications (Nos. 172/1984, 180/1984 and 182/1984) that the scope of artiCle 26 of the Covenant permitted the examination of allegations of discrimination even with respect to pension rights.
The Committee took note of the State party's argument that, as the alleged violations derived from a law enacted in 1979, the communication should be declared inadmissible on the grounds that the interpretative declar~tion made by France upon ratification of the OptiQnal Protocol precluded the Committee from considering alleged violations that derived from acts or events occurr.ing prior to 17 May 1984, the date on which the Optional Protocol entered into force with respect to France. The Committee observed in this connection that in a number. of earlier cases (Nos. 6/1977 and 24/1977), it had declared that it could not consider an alleged violation of human rights said to have taken place prior to the entry into force of the Covenant for a State party, unless it is a viOlation that continues after that
On 5 November 1987, the Human Rights cVlnmittee therefore decided that the communication was admissible.
In its submission under article 4, paragraph 2, of the Optional Protocol, dated 4 June 1988, the State party recalls its submission under rule 91; AI it adds that Senegalese nationals who acquired French nationality and kept it following Senegal's independence are entitled to the same pension scheme as all other French former members of the armed forces. Articles 97, paragraph 2, to 97, paragraph 6, of the Nationality Code offer any foreigner who at one point in time possessed French nationality the possibility of recovering it. The State party argues that this possibility is not merely theoretical, since, in the past, approximately 2,000 individuals have recovered French nationality each year.
The State party further explains that a Senegalese former member of the armed forces who lost his French nationality following Senegal's independence and then recovered his French nationality would ipso facto recover the rights to which French nationals are entitled under the Pension Code, article L 58 of which provides that "the right to obtain and enjoy the pension and life disability annuity is suspended: ( ••• ) by circumstances which cause a person to lose the status of French natinnal for as long as that loss of nationality shall last". This implies that once nationality is recovered, the right to a pension is re-established. The State party concludes that nationality remains the sole criterion on which the difference in treatment referred to by the authors is based.
In their comments on the State party's submission, the authors, in a letter dated 21 July 1988, submit that the State party has exceeded the deadline for submission of its submission under article 4, paragraph 2, of the Optional Protocol by 12 days, and that for this reason it should be ruled inadmissible. bl In this conne~tion, they suspect that "(b) by stalling and making full use, even beyond the deadlines set under the Committee's rules of procedure, of procedural tactics so as to delay a final decision, the State party hopes that the authors will die off one by one and that the amounts it will have to pay will drop ~onsiderably". Alternatively, the authors argue that the Committee should not further examine the State party's observations uS they repeat arguments discussed at length in earlier submissions and thus should be considered to be of a dilatory na~ure. 1? with respect to the merits of their case, the authors maintain that the State ~ argument concerning the question of nationality is a fallacious one. They ~hat the State party is only using the nationality argument as a pretext, so as ~eprive the ~enegalese of their acquired rights. They further refer to article 71 of the 1951 Code of Military Pensions, which stipulates: In their view, they enjoy "inalienable and irreducible pension rights" under this legislation. Since none of them has ever been accused of having participated in a hostile act against France, they submit that the issue of nationality must be "completely and definitely" ruled out.
The authors argue that they have been the victims of racial discrimination based on the colour of their skin, on the purported grounds thatl (a) In Senegal, registry office records are not well kept and fraud is rife; (b) As those to whom pensions are owed, i.e. the authors, are blacks who live in an underdeveloped country, they do not nend as much money as pensioners who live in a developed country such as France. The authors express consternation at the fact that the State party is capable of arguing that, since the creditor is not rich and lives in a poor country, the debtor may reduce his debt in proportion to the degree of need and poverty of his creditor, an argument they consider to be contrary not only to fundamental principles of law but also to moral standards and to equity.
The Human Rights Committee, having considered the present communication 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, bases its views on the following facts, which appear uncontested.
The authors are retired soldiers of Senegalese nationality who served in the French Army prior to the independence of Senegal in 1960. Pursuant to the Code of Military Pensions of 1951, retired members of the French Army, whether French or Senegalese, were treated equally. Pension rights of Senege'ese soldiers were the same as those of French soldiers until a new law, e~acted in December 1974, provided for different treatment of the Senegalese. Law No. 79/1102 of 21 December 1979 further extended to the nationals of four States formerly belonging to the French Union, including Senegal, the regime referred to as "crystallization" of military pensions that had already applied since 1 January 1961 to the nationals of other States concerned. Other retired Senegalese soldiers have sought to challenge the laws in question, but French Finance Law No. 61.1179 of 31 December 1981, applied with retroactive effect to 1 January 1975, has rendered further recourse before French tribunals futile.
The main question before the Committee is whether the authors are victims of discrimination within the meaning of article 26 of tL~ Covenant or whether the nifferences in pension treatment of former members of the French Army, based on whether they are French nationals or not, should be deemed compatible with the Covenant. In determining this question, the Committee has taken into account the following considerations.
The Committee has noted the authors' claim that they have been d~scriminated c\r~C\inst on racial grounds, that is, one of the grounds specifically enwnerated in nrtiele 26. It finds that there is no evidence to support the allegation that the ~h.lle purty has engaged in racially discr iminatory practices ili:~-=_'lli the di~crimination listed in article 26, and that the Covenant does not protect the rig~t to a pension, as such. Under article 26, discrimination in the equal prolection of the law is prohibited on any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, pr~pe(ty, birth or other status. There has been a differentiation by reference to nationality acquired upon independence. In the Committee's opinion, this falls within the reference to "other status" in the .lItcond sentence of article 26. The Committee takes into account. as it did in communication No. 182/1984, that "the rig~t to equality before the law and to equal protection of the law without any discrimination does not make all uifferences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26".
In determining whether the treatment of, the authors is based on reasonable and objective criteria, the Committee notes th~t it was not the question of nationality which determined the granting of pensions to t&e authors but the services rendered ~y them in the past. They had served in the French Armed Forces under the same conditions as French citizens; for 14 years subsequent to the independence of Senegal they were treated in the same way as their French counterparts for the purpose of pension rights, although their nation3)'ity was not French but 5eneg~lese. A SUbsequent change in nationality cannot by itself be considered as a sufficient justification for different treatment, since the basis for the grant of the pension was the same service which both they and the soldiers who remained French had provided. Nor can differences in the economic, financial and social conditions as between France and Senegal be invoked as a legitimate justification. If one compared the case of retired soldiers of Sen~galr e nationality living in Genegal with that of retired soldiers of French nationality in Senegal, it would appear that they enjoy the same economic and s~cial conditions. Yet, their treatment for the purpose of pension entitlements would differ. Finally, the fact that t~9 State party claims that it can no longer carry out checks of identity and family situation, so as to prevent abuses in the administration of pension schemes cannot justify a difference in ~reatment. In the Committee's opinion, mere administrative inconvenience or the possibility of some abuse of pension rights cannot be invoked to justify unequal treatment. The Committee concludes that the difference in treatment of the authors is not based on reasonab~e and objective criteria and constitutes discrimination prohibited by the Covenant.
The Human Rights Committee, acting under article 5, paragraph 4. of the Optional Protocol to the International Covenant 011 Civil and Political Rights, is of the view that the events in this case, in so far as they produced effect~ after 17 May lQ84 (the date of entry into force of the Optional Protocol for France), discI .~ a violation of article 26 of the Covenant.
The Committee, accordingly, i~ of the view that the State party is under an obligation, in accordance with the provisions of article 2 of the Covenant, to take effective measures to remedy the viOlations suffered by the victims. bl The 4ea4line for the State party's submission un4er article 4, parag~'aph 2, expired on 4 J~ne 1988. Although the submission is date4 4 June 1980, it was transmitted un4er cover of a note 4ate4 16 June 1988.