CCPR/C/117/D/2378/2014 Annex II Joint opinion of Committee members Sarah Cleveland and Sir Nigel Rodley (concurring) 1. We write separately from the Committee to comment on the Committee’s determination of inadmissibility with respect to the authors’ claims under articles 17 and 24. 2. In paragraph 7.5, the Committee concludes that the authors’ claims that Italy would violate their rights and those of their children under articles 17 and 24 are inadmissible under article 3 of the Optional Protocol, on the grounds of incompatibility ratione materiae with the Covenant. That determination is correct, given that Italy is not a party to the present communication. 3. We write, however, to note what the determination of inadmissibility does not address. It does not address a situation in which the author alleges that the deporting State would itself violate articles 17 and 24, as a result of harms inflicted on the individual or the family as a result of the deportation. The Committee routinely addresses such claims on the merits.1 4. The Committee also does not address a situation in which the authors assert that the State party, in this case, Denmark, is deporting them to a situation in which there are substantial grounds for believing that they would face a real risk of irreparable harm from violations under articles 17 and 24, such as the harms contemplated by articles 6 and 7 of the Covenant. 5. As the Committee noted in its general comment No. 31, the article 2 obligation to respect and ensure Covenant rights imposes an obligation on States parties not to deport or otherwise transfer a person from their territory, “where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant.”2 6. Articles 6 and 7 address the right to life and the prohibition of torture and cruel, inhuman or degrading treatment or punishment. The Committee has never comprehensively addressed to what extent irreparable harm resulting from the violation of Covenant rights other than articles 6 and 7 may give rise to the non-refoulement obligation addressed by general comment No. 31. However, the Committee has not foreclosed the possibility of recognizing such non-refoulement obligations, however, nor has it taken the position that non-refoulement claims based on other articles are per se incompatible ratione materiae with the Covenant. To the contrary, the Committee previously has accepted as adequately substantiated and admissible claims under article 18, that an individual would face a real risk of irreparable harm as a result of violations of the right to freedom of religion in the receiving country. 3 In other cases, the Committee has concluded that allegations under articles 18 and 19 “cannot be dissociated from” claims under article 7 for purposes of admissibility. 4 However, the Committee generally has not addressed such claims on the 1 2 3 4 GE.17-20685 See, for example, communications No. 2081/2011, D.T. and A.A. v. Canada, Views adopted in July 2016, paras. 7.2-7.11; and No. 1959/2010, Warsame v. Canada, Views adopted on 21 July 2011, para. 8.10. See the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para. 12 (emphasis added). See, for example, communication No. 2291/2013, A. and B. v. Denmark, Views adopted in June 2016, paras. 7.4 and 8.7, finding an article 18 claim adequately substantiated for the purposes of admissibility and resolving it on the merits in connection with the determination under articles 6 and 7. See communications No. 2329/2014, Z. v. Denmark, Views adopted on 15 July 2015, paras. 6.4 and 7.4, addressing articles 18 and 19; and No. 2007/2010, X v. Denmark, Views adopted on 26 March 2014, paras. 8.4 and 9.4, addressing article 18; see also the individual opinion of Gerald L. Neuman. 13