obligations under article 2, paragraph 1, of the Covenant.
The "dispensation" clause of paragraph 2 applies merely
domestically and as such concerns only the United States,
as a State party to the Covenant.
Canada did not violate its obligations under the Covenant.
The question whether the author ran that risk under the
Covenant in its concrete application to Canada must be
examined, as the Committee sets out to do, in the light of
the fact that Canada's decision to abolish the death penalty
for all civil, as opposed to military, offences was given
effect to in Canadian law.
Other States, however, are in my view obliged to
observe their duties under article 6, paragraph 1, namely
to protect the right to life. Whether they have or have not
abolished capital punishment does not, in my opinion,
make any difference. The dispensation in paragraph 2
does not apply in this context. Only the rule in article 6,
paragraph 1, applies, and it must be applied strictly. A
State party must not defeat the purpose of article 6,
paragraph 1, by failing to provide anyone with such
protection as is necessary to prevent his/her right to life
from being put at risk. And under article 2, paragraph 1, of
the Covenant, protection shall be ensured to all
individuals without distinction of any kind. No distinction
must therefore be made on the ground, for instance, that a
person has committed a "most serious crime".
2.3
The question which arises is what exactly are the
obligations of Canada with regard to the right to life
guaranteed under article 6 of the Covenant even if read
alone and, perhaps and possibly, in the light of other
relevant provisions of the Covenant, such as equality of
treatment before the law under article 26 and the
obligations deriving from article 5 (2) which prevents
restrictions or derogations from Covenant rights on the
pretext that the Covenant recognizes them to a lesser
extent. The latter feature of the Covenant would have, in
my view, all its importance since the right to life is one to
which Canada gives greater protection than might be
thought to be required, on a minimal interpretation, under
article 6 of the Covenant.
The value of life is immeasurable for any human
being, and the right to life enshrined in article 6 of the
Covenant is the supreme human right. It is an obligation
of States parties to the Covenant to protect the lives of all
human beings on their territory and under their
jurisdiction. If issues arise in respect of the protection of
the right to life, priority must not be accorded to the
domestic laws of other countries or to (bilateral) treaty
articles. Discretion of any nature permitted under an
extradition treaty cannot apply, as there is no room for it
under Covenant obligations. It is worth repeating that no
derogation from a State's obligations under article 6,
paragraph 1, is permitted. This is why Canada, in my
view, violated article 6, paragraph 1, by consenting to
extradite Mr. Kindler to the United States, without having
secured assurances that Mr. Kindler would not be
subjected to the execution of a death sentence.
2.4
It would be useful to examine, in turn, the
requirements of articles 6, 26 and 5 (2) of the Covenant
and their relevance to the facts before the Committee.
3.1
Article 6 (1) of the Covenant proclaims that
everyone has the inherent right to life. It requires that this
right shall be protected by law. It also provides that no one
shall be arbitrarily deprived of his life. Undoubtedly, in
pursuance of article 2 of the Covenant, domestic law will
normally provide that the unlawful violation of that right
will give rise to penal sanctions as well as civil remedies.
A State party may further give appropriate protection to
that right by outlawing the deprivation of life by the State
itself as a method of punishment where the law previously
provided for such a method of punishment. Or, with the
same end in view, the State party which has not abolished
the death penalty is required to restrict its application to
the extent permissible under the remaining paragraphs of
article 6, in particular, paragraph 2. But, significantly,
paragraph 6 has for object to prevent States from invoking
the limitations in article 6 to delay or to prevent the
abolition of capital punishment. And Canada has decided
to abolish this form of punishment for civil, as opposed to
military, offences. It can be said that, in so far as civil
offences are concerned, paragraph 2 is not applicable to
Canada, because Canada is not a State which, in the words
of that paragraph, has not abolished the death penalty.
B. Wennergren
C. INDIVIDUAL OPINION SUBMITTED
BY MR. RAJSOOMER LALLAH (DISSENTING)
1.
I am unable to subscribe to the Committee's Views
to the effect that the facts before it do not disclose a
violation by Canada of any provision of the Covenant.
2.1
I start by affirming my agreement with the
Committee's opinion, as noted in paragraph 13.1 of the
Views, that what is at issue is not whether Mr. Kindler's
rights have been, or run the real risk of being, violated in
the United States and that a State party to the Covenant is
required to ensure that it carries out other commitments it
may have under a bilateral treaty in a manner consistent
with its obligations under the Covenant. I further agree
with the Committee's View, in paragraph 13.2, to the
effect that, where a State party extradites a person in such
circumstances as to expose him to a real risk that his rights
under the Covenant will be violated in the jurisdiction to
which that person is extradited, then that State party may
itself be in violation of the Covenant.
3.2
It seems to me, in any event, that the provisions of
article 6 (2) are in the nature of a derogation from the
inherent right to life proclaimed in article 6 (1) and must
therefore be strictly construed. Those provisions cannot
justifiably be resorted to in order to have an adverse
impact on the level of respect for, and the protection of,
that inherent right which Canada has undertaken under the
Covenant "to respect and to ensure to all individuals
within its territory and subject to its jurisdiction". In
furtherance of this undertaking, Canada has enacted
legislative measures to do so, going to the extent of
abolishing the death penalty for civil offences. In relation
to the matter in hand, three observations are called for.
2.2
I wonder, however, whether the Committee is right
in concluding that, by extraditing Mr. Kindler, and thereby
exposing him to the real risk of being deprived of his life,
3.3
First, the obligations of Canada under article 2 of
the Covenant have effect with respect to "all individuals
within its territory and subject to its jurisdiction",
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