assurances regarding the death penalty in the same
fashion as is found in article 6 of the Extradition
Treaty between Canada and the United States. It
concludes that interference with the surrender of a
fugitive pursuant to legitimate requests from a treaty
partner would defeat the principles and objects of
extradition treaties and would entail undesirable
consequences for States refusing these legitimate
requests. In this context, the State party points out
that its long, unprotected border with the United
States would make it an attractive haven for fugitives
from United States justice. If these fugitives could
not be extradited because of the theoretical
possibility of the death penalty, they would be
effectively irremovable and would have to be
allowed to remain in the country, unpunished and
posing a threat to the safety and security of the
inhabitants.
that article 1 of the Covenant was "clearly intended to
apply to individuals subject to the jurisdiction of the
State party concerned at the time of the alleged
violation of the Covenant" (emphasis added).
5.3 Counsel finally stresses that the author does not
claim a right not to be extradited; he only claims that
he should not have been surrendered without
assurances that the death penalty would not be
imposed. He submits that the communication is
therefore compatible with the provisions of the
Covenant. He refers in this context to the Committee's
Views on communication No. 107/1981,7 where the
Committee found that anguish and stress can give rise
to a breach of the Covenant; he submits that this
finding is also applicable in the instant case.
The Committee's consideration of and decision on
admissibility
4.6 The State party finally submits that the author
has failed to substantiate his allegations that the
treatment he may face in the United States will violate
his rights under the Covenant. In this connection, the
State party points out that the imposition of the death
penalty is not per se unlawful under the Covenant. As
regards the delay between the imposition and the
execution of the death sentence, the State party
submits that it is difficult to see how a period of
detention during which a convicted prisoner would
pursue all avenues of appeal, can be held to constitute
a violation of the Covenant.
6.1 During
its
forty-sixth
session,
in
October 1992, the Committee considered the
admissibility of the communication. It observed that
extradition as such is outside the scope of application
of the Covenant,8 but that a State party's obligations
in relation to a matter itself outside the scope of the
Covenant may still be engaged by reference to other
provisions of the Covenant.9 The Committee noted
that the author does not claim that extradition as
such violates the Covenant, but rather that the
particular circumstances related to the effects of his
extradition would raise issues under specific
provisions of the Covenant. Accordingly, the
Committee found that the communication was thus
not excluded ratione materiae.
5.1 In his comments on the State party's
submission, counsel submits that the author is and
was himself actually and personally affected by the
decision of the State party to extradite him and that
the communication is therefore admissible ratione
personae. In this context, he refers to the
Committee's Views in communication No. 35/1978,5
and argues that an individual can claim to be a
victim within the meaning of the Optional Protocol
if the laws, practices, actions or decisions of a State
party raise a real risk of violation of rights set forth
in the Covenant.
6.2 The Committee considered the contention of
the State party that the claim is inadmissible ratione
loci. Article 2 of the Covenant requires States parties
to guarantee the rights of persons within their
jurisdiction. If a person is lawfully expelled or
extradited, the State party concerned will not
generally have responsibility under the Covenant
for any violations of that person's rights that may
5.2 Counsel further argues that, since the decision
complained of is one made by Canadian authorities
while the author was subject to Canadian jurisdiction,
the communication is admissible ratione loci. In this
connection, he refers to the Committee's Views in
communication No. 110/1981,6 where it was held
7
Official Records of the General Assembly, Thirtyeighth Session, Supplement No. 40 (A/38/40), annex XXII,
Almeida de Quinteros v. Uruguay, Views adopted on 21
July 1983, para. 14.
8
Ibid., Thirty-ninth Session, Supplement No. 40
(A/39/40), annex IV, communication No. 117/1981 (M. A.
v. Italy), decision adopted on 10 April 1984, para. 13.4.
5
Official Records of the General Assembly, Thirtysixth Session, Supplement No. 40 (A/36/40), annex XIII,
S. Aumeeruddy-Cziffra et al. v. Mauritius, Views adopted
on 9 April 1981, para. 9.2.
9
Official Records of the General Assembly, Thirtysixth Session, Supplement No. 40 (A/36/40), annex XIII,
communication No. 35/1978 (Aumeeruddy-Cziffra et al. v.
Mauritius), Views adopted on 9 April 1981; and ibid.,
Forty-fifth Session, Supplement No. 40 (A/45/40), annex
IX.K, communication No. 291/1988 (Torres v. Finland),
Views adopted on 2 April 1990.
6
Ibid., Thirty-ninth Session, Supplement No. 40
(A/39/40), annex XI, Antonio Viana Acosta v. Uruguay,
Views adopted on 29 March 1984, para. 6.
96
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