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. 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. 4.6 The State party points out to the Committee that the author is disputing use of the noble title of Marquis of Tabalosos, 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. 4.9 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. 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. Author’s comments 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 nondiscrimination, 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. 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.5 According to the State party, only 11 judgements of the Supreme Court - not adopted 5 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. 29