Following the death of the Count of Bulnes, Cristina Muñoz-Vargas y Sainz de Vicuña (CMV), the Count’s first-born child, instituted legal proceedings in Spain challenging the succession of her younger brother to the title of nobility. Under the Decree on the Order of Succession to Titles of Nobility, which was then in effect in Spain, a woman was entitled to inherit a title of nobility only if she was the first-born child and did not have a younger brother. Male children were given primacy over female children in the ordinary line of succession in all other situations.
CMV claimed that male primacy in the order of succession to titles of nobility was discriminatory and, therefore, unconstitutional. Domestic courts dismissed her claim on the ground that the primacy afforded to male children was compatible with the constitutional rights to non-discrimination and equality, owing to the honorary and historic nature of titles and because the brother’s succession to the title of Count of Bulnes occurred prior to the commencement of the Spanish Constitution.
The author subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (Committee) in which she claimed that male primacy in the order of succession to titles of nobility constituted discrimination on the basis of sex, in violation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in general, and articles 2(c) and 2(f) in particular. She further claimed that Spain was required by CEDAW to amend or revise its laws establishing male primacy in the order of succession to titles of nobility.
Spain’s observations on admissibility
Spain contested the admissibility of the communication under article 4(2)(a) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol). It claimed that the Committee was prevented from considering the merits of the communication because the Human Rights Committee had already determined two similar cases and the European Court of Human Rights had determined a further similar case, all of which were declared inadmissible ratione materiae.
In a subsequent submission, Spain contested the admissibility of the communication on two further grounds. First, citing pending (recurso de amparo) proceedings before its Constitutional Court, Spain submitted that CMV had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol. Second, it submitted that the communication was inadmissible ratione temporis under article 4(2)(e) of the Optional Protocol, as the alleged violation predated the entry into force of the Protocol for Spain.
CEDAW Committee’s admissibility decision
On 9 August 2007, the Committee declared the communication inadmissible. A slim majority of the Committee declared the communication inadmissible ratione temporis on the basis that the succession of CMV’s brother occurred before the entry into force date of CEDAW and the Protocol for Spain. Eight Committee members, whilst agreeing with the majority’s conclusion, in a concurring opinion, declared the communication inadmissible ratione materiae because it was incompatible with CEDAW. Committee member Shanthi Dairiam issued a dissenting opinion, in which she declared the communication admissible and proceeded to find a violation of CEDAW in general.
In declaring the communication inadmissible ratione temporis, the majority focused on the point in time at which CMV’s brother succeeded to the title of nobility, which occurred before CEDAW and the Protocol entered into force. The majority appears to have conceded, without finding, that there might be ongoing effects on CMV of her brother’s succession, which could exempt her from the requirement to show that the alleged violation occurred prior to the relevant entry into force date. However, it took the view that any such effects did not justify a reversal of the decree of succession in the author’s case.
In declaring the communication inadmissible ratione materiae, eight Committee members in a concurring opinion focused on whether or not CEDAW protects a right to inherit titles of nobility. Based on the undisputed view that the title of nobility in question was ‘of a purely symbolic and honorific nature, devoid of any legal or material effect’, the concurring members found that CEDAW did not afford protection to such hereditary entitlements and that male primacy in the order of succession to titles of nobility could not, therefore, be the subject of a communication under the Optional Protocol.
In finding the communication admissible ratione temporis, Dairiam concluded that Spain’s courts had affirmed the earlier alleged violation of the author’s rights when, after the entry into force date of the Optional Protocol for Spain, they upheld the finding that male primacy in the order of succession to titles of nobility was consistent with Spain’s constitutional guarantee of equality.
In finding the communication admissible ratione materiae, Dairiam asserted that the communication was concerned primarily with ‘the element of discrimination against women that takes place in the distribution of social privileges using the law and legal processes,’ rather than the author’s entitlement to succeed to the title of nobility per se, which she conceded was not a fundamental right protected by CEDAW. Based on this view, Dairiam concluded that the communication was compatible with the intent and spirit of CEDAW, namely to eliminate all forms of discrimination against women, as well as article 5(a) in particular, which requires States Parties to address the negative effects of conduct based on culture, custom, tradition and gender stereotypes that entrench the inferiority of women.
Turning to the merits of the communication, Dairiam concluded that ‘when Spanish law, enforced by Spanish courts, provides for exceptions to the constitutional guarantee for equality on the basis of history or the perceived immaterial consequence of a differential treatment, it is a violation, in principle, of women’s right to equality.’ ‘Such exceptions’, she continued
serve to subvert social progress toward the elimination of discrimination against women using the very legal processes meant to bring about this progress, [and] reinforce male superiority and maintain the status quo. This should neither be tolerated nor condoned on the basis of culture and history. Such attempts do not recognize the inalienable right to non-discrimination on the basis of sex which is a stand-alone right. If this right is not recognized in principle regardless of its material consequences, it serves to maintain an ideology and a norm entrenching the inferiority of women that could lead to the denial of other rights that are much more substantive and material.
Communication No. 7/2005, UN Doc. CEDAW/C/39/D/7/2005 (9 August 2007)