CCPR/C/115/D/2005/2010 Appendix I Individual opinion of Committee member, Sir Nigel Rodley (dissenting) 1. I regret having to record my dissent in this case, especially as I believe the author, an Australian citizen, has shown that he was for a substantial period during his (blatantly arbitrary) detention ill-protected by his Government. However, as the Committee implies by its finding that the author was for most of his period of detention outside the jurisdiction of the State party, the Covenant has not changed the law of diplomatic protection to render this traditionally discretionary recourse into a matter of international legal obligation. 2. Thus, the only issue for the Committee was its agreement to the transfer of the author and its compliance with that agreement. The Committee finds the State party wanting because it failed to show that “it did everything possible to ensure that the terms of the transfer arrangement that had been negotiated with the United States did not cause it to violate the Covenant” (see para. 4.10 above). It so affirms without indicating what more the State party could have actually done to extricate its national from his plight. The Committee wisely avoids saying that it was not open to the State party to have negotiated an agreement on the terms concluded with a view to coming to the (belated) rescue of the author, nor does it say, that once negotiated, the agreement should not have been implemented by the State party. It does not even say that it could have secured a more human-rights-favourable agreement; it merely asserts as fact, without demonstrating it, that the State party could have sought to achieve a better agreement. It is for this failure of argument that I cannot follow the Committee in its conclusion. 3. The Committee, it seems to me, is also unduly dismissive of the author’s acquiescence in the transfer agreement. Had the author not acquiesced, the Committee would certainly have been in a position to use the lack of consent as a possible basis for claiming a violation by the State party. Yet, for the Committee, the author had “little choice” (see para. 4.9 above) but to accept the agreement. In this the Committee comes close to implying that the author was in his rights to accept the agreement in the expectation that the State party would then breach it by not carrying out its terms, once the author was returned to the State party. Such a perspective does little to enhance the institution of transfer-of-prisoner agreements: these depend on scrupulous compliance by the receiving State of the terms of the transfer if future prisoners are to benefit from the same option. 9