considered the authors’ claim of discrimination, in
violation of article 26 of the Covenant, on account of
the alleged absence of specific legal protection of
burial grounds in French Polynesia. The Committee
has noted the State party’s challenge to the
admissibility of this claim, as well as the subsidiary
detailed arguments relating to its merits.
they deliberately chose not to do so, claiming that
French authorities should have kept indigenous
tribunals in operation. The Committee observes that
the dispute over ownership of the land was disposed
of by the Tribunal of Papeete in 1961 and that the
decision was not appealed by the previous owners.
No further step was made by the authors to challenge
the ownership of the land, nor its use, except by
peaceful occupation. In these circumstances, the
Committee concludes that the facts before it do not
disclose a violation of article 14, paragraph 1.
10.5 On the basis of the information placed before
it by the State party and the authors, the Committee
is not in a position to determine whether or not there
has been an independent violation of article 26 in the
circumstances of the instant communication.
10.3 The authors claim that the construction of the
hotel complex on the contested site would destroy
their ancestral burial grounds, which represent an
important place in their history, culture and life, and
would arbitrarily interfere with their privacy and
their family lives, in violation of articles 17 and 23.
They also claim that members of their family are
buried on the site. The Committee observes that the
objectives of the Covenant require that the term
“family” be given a broad interpretation so as to
include all those comprising the family as
understood in the society in question. It follows that
cultural traditions should be taken into account when
defining the term “family” in a specific situation. It
transpires from the authors’ claims that they consider
the relationship to their ancestors to be an essential
element of their identity and to play an important
role in their family life. This has not been challenged
by the State party; nor has the State party contested
the argument that the burial grounds in question play
an important role in the authors’ history, culture and
life. The State party has disputed the authors’ claim
only on the basis that they have failed to establish a
kinship link between the remains discovered in the
burial grounds and themselves. The Committee
considers that the authors’ failure to establish a
direct kinship link cannot be held against them in the
circumstances of the communication, where the
burial grounds in question pre-date the arrival of
European settlers and are recognized as including the
forbears of the present Polynesian inhabitants of
Tahiti. The Committee therefore concludes that the
construction of a hotel complex on the authors’
ancestral burial grounds did interfere with their right
to family and privacy. The State party has not shown
that this interference was reasonable in the
circumstances, and nothing in the information before
the Committee shows that the State party duly took
into account the importance of the burial grounds for
the authors, when it decided to lease the site for the
building of a hotel complex. The Committee
concludes that there has been an arbitrary
interference with the authors’ right to family and
privacy, in violation of articles 17, paragraph 1, and
23, paragraph 1.
11. The Human Rights Committee, acting under
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
violations of articles 17, paragraph 1, and 23,
paragraph 1, of the Covenant.
12. The Human Rights Committee is of the view
that the authors are entitled, under article 2,
paragraph 3 (a), of the Covenant, to an appropriate
remedy. The State party is under an obligation to
protect the authors’ rights effectively and to ensure
that similar violations do not occur in the future.
13. Bearing in mind that, by becoming a State
party to the Optional Protocol, the State party has
recognized the competence of the Committee to
determine whether there has been a violation of the
Covenant or not and that, pursuant to article 2 of the
Covenant, the State party has undertaken to ensure to
all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant
and to provide an effective and enforceable remedy
in case a violation has been established, the
Committee wishes to receive from the State party,
within 90 days, information about the measures
taken to give effect to the Committee’s Views.
APPENDIX I
Individual opinion submitted by Ms. Elizabeth Evatt,
Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar,
Mr. Martin Scheinin and Mr. Maxwel Yalden pursuant to
rule 94, paragraph 3, of the Committee’s rules of
procedure, concerning the Views of the Committee on
communication No. 549/1993,
Francis Hopu and Tepoaitu Bessert v. France
We do not share the Committee’s decision of
30 June 1994 to declare the authors’ complaint
inadmissible in relation to article 27 of the Covenant.
Whatever the legal relevance of the declaration made by
France in relation to the applicability of article 27 may be
in relation to the territory of metropolitan France, we do
not consider the justification given in said declaration to
be of relevance in relation to overseas territories under
French sovereignty. The text of said declaration makes
reference to article 2 of the French Constitution of 1958,
10.4 As set out in paragraph 7.3 of the decision of
30 October 1995, the Committee has further
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