Thus, in a judgment handed down in 1975 Judgment
in the case of Sieur Paris de Bollardière, 11 July
1975, the Conseil d'État had already held that the
establishment of a security zone around the nuclear
testing areas in the South Pacific were governmental
decisions ("acte de gouvernement") which could not
be dissociated from France's international relations
and were not susceptible of control by national
tribunals. The same considerations are applicable to
the present case. Counsel further notes that the
French section of Greenpeace challenged the
resumption of nuclear tests before the Conseil d'État:
by judgment of 29 September 1995, the Conseil
d'État dismissed the complaint, on the basis of the
"act of government" theory1.
the Committee by letter dated 18 August 1995, so as
to enable him to present his case to the European
Commission of Human Rights. In his respect,
therefore, the Committee discontinues consideration
of his complaint. Conversely, Ms. Bordes withdrew
her application to the European Commission by
telefax of 17 August 1995, before any decision was
adopted by the European Commission of Human
Rights. Given, therefore, that the authors of the case
which was before the European Commission and of
the present case are not identical, the Committee
need not examine whether the French reservation to
article 5, paragraph 2 (a), of the Optional Protocol,
applies in the present case.
5.3 In the initial communication, the authors
challenge President Chirac's decision to resume
nuclear underground tests on Mururoa and
Fangataufa as a violation of their rights under
articles 6 and 17 of the Covenant. In subsequent
letters, they reformulate their claim in that the actual
conduct of tests has increased the risks to their lives
and for their families.
4.7 Counsel reiterates that the authors' complaints
are compatible ratione materiae with articles 6 and
17 of the Covenant. As far as article 6 is concerned,
she recalls that the Human Rights Committee has
consistently, including in General Comment 6 [16]
on article 6, argued that the right to life must not be
interpreted restrictively, and that States should adopt
positive measures to protect this right. In the context
of examination of periodic State reports, for
example, the Committee has frequently enquired into
States parties' policies relating to measures to reduce
infant mortality or improve life expectancy and
policies relating to the protection of the environment
or of public health. Counsel emphasizes that the
Committee itself has stated, in its General Comment
14 [21] of 2 November 1984, that the development,
testing, possession and deployment of nuclear
weapons constitutes one of the most serious threats
to the right to life.
5.4 The Committee has noted the State party's
contention that the authors do not qualify as
"victims" within the meaning of article 1 of the
Optional Protocol. It recalls that for a person to
claim to be a victim of a violation of a right
protected by the Covenant, he or she must show
either that an act or omission of a State party has
already adversely affected his or her enjoyment of
such right, or that there is a real threat of such
result.2
5.5 The issue in the present case therefore is
whether the announcement and subsequent conduct
of underground nuclear tests by France on Mururoa
and Fangataufa resulted in a violation of their right
to life and their right to their family life, specific to
Ms. Bordes and Mr. Temeharo, or presented an
imminent threat to their enjoyment of such rights.
The Committee observes that, on the basis of the
information presented by the parties, the authors
have not substantiated their claim that the conduct of
nuclear tests between September 1995 and the
beginning of 1996 did not place them in a position in
which they could justifiably claim to be victims
whose right to life and to family life was then
violated or was under a real threat of violation.
4.8 As far as the authors' claim under article 17 is
concerned, counsel notes that the risks to the authors'
family life are real: thus, the danger that they loose a
member of their family through cancer, leukaemia,
ciguatera, etc., increases as long as measures are not
taken to prevent the escape of radioactive material
set free by the underground tests into the atmosphere
and environment. This is said to constitute an
unlawful interference with the authors' right to their
family life.
Issues and proceedings before the Committee
5.1 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.
5.6 Finally, as to the authors' contention that the
nuclear tests will further deteriorate the geological
structure of the atolls on which the tests are carried
out, further fissurate the limestone caps of the atolls,
etc., and thereby increase the likelihood of an
accident of catastrophic proportions, the Committee
5.2 The Committee notes that Mr. Tauira
withdrew his communication from consideration by
2
1
Association Greenpeace
29 September 1995.
France,
judgment
See, e.g., decision on communication No. 429/1990
(E.W. et al. v. the Netherlands), adopted on 8 April 1993,
paragraph 6.
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