CCPR/C/115/D/2005/2010 Appendix II Individual opinion by Committee member, Dheerujlall Seetulsingh (dissenting) 1. All the claims of the author have been rejected by the majority except for the alleged violation of article 9 (1) of the Covenant by the State party for detaining the author for some seven months in Australia under the prisoner transfer arrangement with the United States. 2. In my view, the State party has not committed any violation in that respect, as the author has not been subjected to arbitrary detention as understood under the Covenant. To find a violation is tantamount to requiring the State party to sit on appeal on legal proceedings that had taken place in the United States, outside the jurisdiction of the State party. 3. What we are concerned with here is very clearly explained in the reply of the State party to the author’s contention, as set out in paragraphs 84-89, 95-96 and 99 of annex II below. The issue of transfer of prisoners is governed by: (a) the Convention on the Transfer of Sentenced Persons, to which both Australia and the United States are party; (b) the arrangement between the two countries; and (c) the International Transfer of Prisoners Act of 1997 of Australia. Section 10 of the Act stipulates very clearly that Australia and the transfer country must agree to the transfer of the prisoner on the terms of the Act and that the prisoner must have consented in writing to the transfer on those terms. The author did consent to the transfer and cannot renege on the consent given to subsequently reproach the State party for having agreed to the transfer and for not having negotiated better terms. Had the State party questioned the circumstances surrounding the author’s detention in 2007 on the basis of certain events that occurred in 2006, mentioned in paragraph 4.8 of the majority’s Views, it is most likely that negotiations for the author’s transfer would have failed. Furthermore, any reference to the United States ruling of 2015 is irrelevant to the issue as it is ex post facto. 4. The conclusions of the majority are founded on a hypothetical situation in which the State party could allegedly have negotiated better terms without mentioning what those terms could have been. These conclusions may imply that the State party could have asked that the author be freed in the United States before being transferred to Australia, or that the author should have been transferred to Australia and then freed. It is hard to imagine this kind of arrangement or negotiation taking place. It is also difficult to infer that the State party should have agreed to the transfer and then not respected its terms, freeing the author as soon as he landed in Australia. Such a course of action would make a complete mockery of transfer agreements and would be in violation of all international legal obligations and diplomatic relations. That would not safeguard human rights and cannot be the purpose of our Covenant. 5. Paragraphs 86 and 87 of annex II below refer to the binding clauses of the arrangement between the two States: how the arrangement had be abided by, for example, as regards the legal nature and duration of the sentence; and the sole right of the United States to decide on any application for the review of the judgement or to pardon the offence. 6. Paragraphs 89 and 94 of annex II below point to the author’s contention seeking to undermine the whole purpose of schemes facilitating the international transfer of prisoners: 10