I concur in the views expressed in the Committee's decision. However, in my opinion, the arguments in paragraph 5.4 of the
decision need to be clarified and expanded. In this paragraph, the Committee reminds the State party that it is under an
obligation, in respect of violations occurring or continuing after the entry into force of the Covenant, to investigate alleged
violations thoroughly and to provide remedies, where applicable, for victims or their dependants.
According to article 28 of the 1969 Vienna Convention on the Law of Treaties (cited under paragraph 4.2 in the
Committee's decision) a treaty's provisions do not bind a party in relation to any act or fact which took place or any situation
which ceased to exist before the date of entry into force of the treaty in respect of that party; the Permanent Court of International
Justice (PCIJ Series A/B, No. 74 (1938), p. 10-48 - Phosphates in Morocco case) has held in this context that both the terms
concerning the limitation ratione temporis and the underlying intention are clear; this clause was inserted in order to deprive the
acceptance of the compulsory jurisdiction of any retroactive effects. In this case, the Court had to decide whether or not issues
arose from factors subsequent to the acceptance of its jurisdiction (which the Court refers to as the "crucial date"), firstly because
certain acts, which, if considered separately, were in themselves unlawful international acts, were actually accomplished after the
"crucial date"; secondly, because these acts, if taken in conjunction with earlier acts to which they were closely linked,
constituted as a whole a single, continuing and progressive illegal act which was not fully accomplished until after the "crucial
date"; and lastly, because certain acts which were carried out prior to the "crucial date" nevertheless gave rise to a permanent
situation which was inconsistent with international law and which existed after the said date. The question of whether a given
situation or fact occurs prior to or subsequent to a particular date is, the Court explains, one to be decided in respect of each
specific case, just as the question of the situations or facts with regard to which the issues arose must be decided in regard to each
specific case. I note that the "crucial date" in this case is 8 November 1986.
The Committee has repeatedly indicated in prior decisions that it "can consider only an alleged violation of human
rights occurring on or after (the date of entry into force of the Covenant and the Protocol for the State party) unless it is an
alleged violation which, although occurring before that date, continues or has effects which themselves constitute a violation
after that date". Disappearance cases that cannot be attributed to natural causes (accidents, voluntary escapes, suicides, etc.) but
that give rise to reasonable assumptions and suspicions of illegal acts, such as killing, deprivation of liberty and inhuman
treatment, may lead to claims not only under the respective material articles in the Covenant (articles 6, 7, 9 and 10) but in
connection therewith also under article 2 of the Covenant, concerning a State party's obligation to adopt such measures as may be
necessary to give effect to the rights recognized in the Covenant and to ensure that any person whose rights or freedoms are
violated shall have an effective remedy. In an early decision involving a disappearance (30/1978 : Bleier v. Uruguay), the
Committee, after noting that, according to unrefuted allegations. "Eduardo Bleier's name was on a list of prisoners read out once
a week at an army unit in Montevideo where his family delivered clothing for him and received his dirty clothing until the
summer of 1976" (i.e. after the "crucial date"), urged the Uruguayan Government "to take effective steps ... to establish what has
happened to Eduardo Bleier since October 1975 (i.e. before the crucial date but with continuation after that date), to bring to
justice any person found to be responsible for his death, disappearance or ill-treatment, and to pay compensation to him or his
family for any injury which he has suffered". In another case (107/1981 : Quinteros v. Uruguay), the Committee was of the view
that the information before it revealed breaches of articles 7, 9 and 10, paragraph 1, of the Covenant and concluded that the
responsibility for the disappearance of Elena Quinteros fell on the authorities of Uruguay and that the State party should take
immediate and effective steps (i) to establish what has happened to Elena Quinteros since 28 June 1976, and secure her release,
(ii) to bring to justice any persons found to be responsible for her disappearance and ill-treatment, (iii) to pay compensation for
the wrongs suffered, and (iv) to ensure that similar violations do not occur in the future. In the latter case, the author of the
communication was the mother of the disappeared victim who had alleged that she, too, was a victim of a violation of article 7
(psychological torture because she did not know about the whereabouts of her daughter) and who had given ample description of
her sufferings. The Committee expressed its understanding of the anguish and stress caused to the mother both by the
disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. She had the right to know
what had happened to her daughter. The Committee therefore found that in these respects she was also a victim of a violation of
the Covenant.
I draw the following conclusions. A disappearance per se does not raise any issue under the Covenant. For it to do so, a
link to some of the material articles of the Covenant is required. And it is solely with such a link that article 2 of the Covenant
may become applicable and an issue may arise under that article also. Should it become clear that the cause of the disappearance
is attributable to a killing for which the State party must be held responsible, but that the killing took place before the "crucial
date", then this killing cannot be deemed to constitute a violation of article 6 of the Covenant, notwithstanding that it was a crime
against the right to life under domestic penal law. Consequently, a claim regarding the non-fulfilment of a State party's
obligations under article 2 of the Covenant also cannot arise. But, on the other hand, if a killing before the "crucial date" is
merely one hypothesis among several others, the case law of the Committee clearly
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