CCPR/C/112/D/2126/2011 Appendix II [Original: English] Individual opinion of Committee member Yuji Iwasawa (dissenting) 1. The author submitted the present communication when no deportation order was in place. It thus raises the issue of whether the author is a “victim” under the Optional Protocol. The author claimed that the Migration Service officials could take the decision to deport him at any time. In response, the State party stresses and reiterates that “at the moment of its submission there is no risk for the author to be forcibly expelled. … There is no decision regarding the deportation of the author to Afghanistan” (paras. 4.5 & 6.1). Because a decision to deport him to Afghanistan has not been taken, I am of the view that he is not a “victim” of a violation of article 7 of the Covenant and that the communication should have been found inadmissible. The author claims that the only reason a decision to deport him has not been taken is the Committee’s request for interim measures, and that claim appears to form the basis for the Committee’s conclusion that he is a “victim” (see para. 10.3). However, the granting of interim measures by the Committee cannot turn an inadmissible communication into an admissible one. I am unable to agree with the Views of the majority which find the communication admissible and find a violation in a hypothetical form that if a deportation order is issued and enforced against the author it would violate his rights under article 7 of the Covenant. 2. Needless to say, in deporting a person, States parties are obliged to respect the provisions of the Covenant. Therefore, should the State party take a decision to deport the author, it must observe the provisions of the Covenant, including article 7. If the decision contravenes the Covenant, the author is not precluded from submitting a new communication to the Committee with a new request for interim measures. 3. The power of the Committee to make a request for interim measures is to be exercised only if it is urgently required in order to prevent “irreparable damage” to the author’s rights under the Covenant before the Committee has had an opportunity to consider the case and adopt its Views. 19 The Committee must make sure that those requirements are met, all the more so because it takes the view that States parties have an obligation under the Optional Protocol to comply with its request for interim measures. 20 In the present case, the Committee, acting through its Special Rapporteur on new 19 20 Rule 92, rules of procedure of the Human Rights Committee; general comment No. 33, on the obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, para. 19; Mandate of the Special Rapporteur on new communications and interim measures: report by the Special Rapporteur (CCPR/C/110/3), para. 10. For decisions of the Committee, see, e.g., communications No. 511/1992, Länsman v. Finland, Views adopted on 26 October 1994, para. 6.3 (rejecting a request for interim measures, stating that the application of rule 92 in this case would be “premature”); No. 645/1995, Bordes and Temeharo v. France, Views adopted on 22 July 1996, para. 2.3 (rejecting a request for interim measures). See also Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, pp. 152–53, para. 62 (“the power of the Court to indicate provisional measures will be exercised only if there is urgency”); Pulp Mills on the River Uruguay (Argentina v. Uruguay), Order of 13 July 2006, I.C.J. Reports 2006, p. 129, para. 62 (“the power of the Court to indicate provisional measures … is to be exercised only if there is an urgent need to prevent irreparable prejudice”). General comment No. 33 (see footnote a), para. 19. 15