in Mayotte. Therefore, the authors are ill advised to complain about discriminatory
application of criminal legislation governing protection of burial sites. The State party
adds that the authors had never, up to mid-1996, filed any action complaining about a
violation of burial grounds.
9.4 In additional observations, the State party argues that the existence of different
legislative texts in metropolitan France and overseas territories does not necessarily
imply a violation of the non-discrimination principle enshrined in article 26. It
explains that pursuant to article 74 of the French Constitution and implementing
legislation, legislative texts adopted for metropolitan France is not automatically and
fully applicable to overseas territories, given the geographic, social and economic
particularities of these territories. Thus, legislative texts applicable to French
Polynesia are either adopted by State organs, or by the competent authorities of
French Polynesia.
9.5 Recalling the Committee's jurisprudence, the State party notes that article 26 does
not prohibit all difference in treatment, if such difference in treatment is based on
reasonable and objective criteria. It submits that the legislative and regulatory
differences between metropolitan France and overseas territories is based on such
objective and reasonable criteria, as stipulated in article 74 of the Constitution, which
explicitly refers to the "specific interests" of the overseas territories. The notion of
"specific interests" is designed to protect the particularities of overseas territories and
justifies the attribution of particular competencies to the authorities of French
Polynesia. This said, the regulations governing the protection of burial sites are very
similar in metropolitan France and in French Polynesia.
9.6 In the latter context, the State party observes that article L.131 al.2 of the Code
des Communes actually applies both in metropolitan France and in Polynesia. The
implementation regulations based on this provision may not be based on the same
texts in metropolitan France and in French Polynesia, but in practice the differences
are insignificant. Thus, the prohibition to exhume the body of a deceased person
without prior authorization is contained both in article 28 of Decision (Arrêté) No.
583 S of 9 April 1953, which is applicable in French Polynesia, and in article R. 36115 of the Code des Communes.
9.7 The State party further observes that in 1989, French Polynesia adopted legislation
governing the urbanization of its territory (Code d'aménagement du territoire).
Chapter Five of this legislation governs the protection of historical sites, monuments,
as well as archaeological activities. The provisions of this legislation are largely
inspired by the laws of 2 May 1930 and of 27 September 1941 (the latter governing
archaeological excavations), and which apply in metropolitan France The State party
provides copies of the texts of these laws.. Reference is made by the State party to
article D. 151-2, paragraph 1, of the Code de l'aménagement de la Polynésie française,
which provides, inter alia, that sites and monuments the preservation of which is of
historical, artistic, scientific or other interest may be placed under partial or complete
protection ("... peuvent faire l'objet d'un classement en totalité ou en partie"). This
provision, it is argued, would apply to the protection of sites presenting a particular