CCPR/C/115/D/2005/2010
jurisdiction. Concerning the present case, although it is a party to the Covenant, the United
States is not a party to the Optional Protocol and therefore has not consented to the
Committee considering allegations that it has breached the Covenant. Furthermore, the
United States has expressly rejected the Committee’s views concerning extraterritorial
application of its obligations under the Covenant, including to its conduct at Guantanamo
Bay.
55.
Notwithstanding that the communication is made against Australia and that the
United States is not a party to the Optional Protocol, a number of the claims expressly or
impliedly allege breaches of the Covenant by the United States. Those breaches constitute
the very subject matter of the claims against Australia and constitute a prerequisite for a
view to be formed on whether Australia breached the Covenant. Accordingly, a number of
claims are inadmissible under article 1 of the Optional Protocol.
Author’s comments
56.
In its response to the State party’s observations, the author submits that the rule of
the International Court of Justice cited by the State party is a jurisdictional rule specific to
the Court in contentious cases and between two or more States in dispute. The distinctive
jurisdictional considerations that apply to that sui generis context do not automatically carry
over to the Committee, which is not a court and focuses on guaranteeing individual human
dignity through a right of individual petition. The Committee’s position is more analogous
to the Court’s advisory opinion jurisdiction, in which there is no rule precluding Court
jurisdiction where legally affected States do not consent to it. The Court does not consider
that to give an advisory opinion would have the effect of circumventing the principle of
consent to judicial settlement. Furthermore, the Committee has issued numerous Views
finding violations of the Covenant by a State party after examining the related conduct of a
State not party to the Optional Protocol; for instance, cases concerning violations of article
7 on non-refoulement. Those latter States typically do not participate in the proceedings and
their consent is neither sought nor required by the Committee. In many such cases, the
Committee has satisfied itself that there is sufficient evidence to reach confident
conclusions about the situation in the State not party to the Optional Protocol and is even
prepared to make predictions about what States not party to the Optional Protocol are likely
to do in the future. There is, therefore, even more reason for the Committee to confidently
make determinations about the provable past conduct of a State not party to the Optional
Protocol in cases where it is connected with the actions of the State party against whom the
communication is brought.
57.
The implication of the State party’s argument is that no claim may be brought
against a State party to the Optional Protocol where the conduct of a State not party thereto
is implicated in the violations of an individual’s rights under the Covenant. In a world of
very active transboundary counter-terrorism cooperation among States (with different levels
of human rights protection), accepting that view would create a legal “black hole” of
accountability in relation to those operations.
58.
Article 1 of the Optional Protocol does not preclude the Committee from
considering the conduct of States not party thereto when determining whether a State party
has violated its obligations under the Covenant.
Further submission by the State party
59.
In a subsequent submission, the State party affirmed that the author’s
characterization of the Committee’s Views as similar to the advisory opinions of the
International Court of Justice is incorrect. The Optional Protocol provides a mechanism
under which States can consent to the Committee’s examination of individual
communications. Unlike the advisory jurisdiction of the Court, which arises at the request
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