CAT/C/31/D/228/2003 Page 10 Individual opinion by Committee member, Mr. Fernando Mariño Menéndez (dissenting in part) I wish to indicate my disagreement with the Committee's decision declaring this complaint inadmissible ratione materiae on the grounds that the complainant's claim of a possible violation of articles 2 and 16, should he be expelled, is incompatible with the Convention (art. 22, para. 2). On the one hand, the fact that expulsion causing the subject severe pain or suffering, whether physical or mental, may constitute torture within the meaning of article 1 of the Convention if, for instance, it is enforced pursuant to a discriminatory policy, should not be discounted. In any event, the right way to respond to the claim of a violation of article 2 in the complaint under consideration would have been to find it inadmissible on the grounds that it was manifestly unfounded (Rules of Procedure, Rule 107 (b)), if that is what the Committee had wanted. On the other hand, expulsion can obviously constitute cruel, inhuman or degrading treatment or punishment, and here, too, the Convention imposes obligations on States parties. The exercise, in other words, is to consider not just how States are complying with their obligations under article 3 of the Convention, but how they are complying with all their obligations under an agreement whose ultimate objective is (sixth preambular paragraph) to "make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world". A further consideration is that under article 31, paragraph 3, of the 1969 Vienna Convention on the Law of Treaties, when interpreting a treaty account must be taken, together with the context, of "any relevant rules of international law applicable in the relations between the parties"; this is relevant inasmuch as it applies to the possible existence of general rules of international law prohibiting cruel, inhuman or degrading treatment. In keeping with the Committee's jurisprudence in case B.S. v. Canada (Case No. 166/2000, Decision adopted on 14 November 2001) it would, in my judgement, have been more correct to find that the complaint raised substantive issues relating to a possible violation of article 16 which should be dealt with at the merits and not at the admissibility stage. [Signed] Mr. Fernando Mariño Menéndez