CCPR/C/120/D/2285/2013 Annex [Original: French/English] Concurring opinion of Committee members Olivier de Frouville and Yadh Ben Achour 1. We agree with the Committee in respect of the inadmissibility of the communication on the grounds that the authors have not sufficiently substantiated their claims. That conclusion implies that, in the future, if a communication were sufficiently substantiated, the Committee could consider it admissible. However, we consider that the Committee perhaps did not make sufficiently clear the criteria on the basis of which it would assert jurisdiction. 2. This is the first time that the Committee has been seized, in the context of its functions under the Optional Protocol, of the issue of the responsibility of a State party in connection with acts committed by commercial corporations that fall under its jurisdiction in the territory of another State. 3. The Committee has, however, already addressed this issue in the context of its review of States parties’ periodic reports. 1 In particular, with regard to Canada, and in respect of article 2 of the Covenant, the Committee expressed concern that the victims of such violations did not have access to remedies and that no “legal framework that would facilitate such complaints” had been established. In so doing, the Committee seems to have implicitly recognized that victims of such acts could fall under the “jurisdiction” of the State party, in the sense of article 2 (1) of the Covenant and article 1 of the Optional Protocol, but does not explain why. The present communication could offer the Committee an opportunity to clarify its jurisprudence. 4. In paragraph 6.4 of the present decision, the Committee recalls the text of article 1 of the Optional Protocol, as well as its jurisprudence on the concept of “jurisdiction”, including as summarized in its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant. In that document, the Committee established the general principle that a State party has an obligation to respect and ensure the rights laid down in the Covenant to anyone within its power or effective control, even if not situated within the territory of the State party. It could therefore have been expected that, in paragraph 6.5 of the present decision, the Committee would explain its interpretation of the terms “power or effective control” in the specific factual context of the communication. Unfortunately, paragraph 6.5 sheds no light in this respect. 5. The Committee has developed “an obligation to ensure that rights under the Covenant are not impaired by extraterritorial activities conducted by enterprises under its jurisdiction” and “particularly […] where violations of human rights that are as serious in nature as the ones raised in this communication are at stake” (para. 6.5). However, even if such an obligation exists under the Covenant, it does not imply that persons who are affected by activities of Canadian corporations operating abroad fall under the jurisdiction of the State party. The statements made in paragraph 6.7 might be more helpful: the Committee reproaches the authors for not having provided sufficient information to substantiate the “nexus between the State party’s obligations under the Covenant, the actions [of the corporations concerned] and the alleged violation of the authors’ rights”. While the wording is far from clear, it has the merit of attempting to address the State party’s objections that it had no “jurisdiction of any kind over individuals living in the village of Bil’in” (para. 4.15) and, in support of this claim, states that, firstly, there is no connection between the alleged violations and the extraterritorial activities of any Canadian State actors and, secondly, that the “only connection between Canada and the facts alleged 1 14 See the Committee’s concluding observations on: the sixth periodic report of Germany (CCPR/C/DEU/CO/6), para. 16; the sixth periodic report of Canada (CCPR/C/CAN/CO/6), para. 6; and the fourth periodic report of the Republic of Korea (CCPR/C/KOR/CO/4), paras. 10 and 11. GE.17-21900