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.
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