CCPR/C/130/D/2918/2016 Annex I [Original: French] Individual opinion of Committee member Yadh Ben Achour (concurring) 1. I fully agree with the Committee’s finding of a violation by the State party of the author’s rights under article 24 (3) of the Covenant. 2. However, I do not agree with paragraph 7.4 of the present Views, concerning admissibility. The author submits that the State party has violated its obligations under article 2 (2) of the Covenant, read in conjunction with article 24, since it has failed, for an excessively long period, to adopt such laws and administrative rules as may be necessary to give effect to the rights enshrined in article 24 of the Covenant. In response to this argument, the Committee recalls its long-standing jurisprudence that the provisions of article 2 (2) cannot be invoked in conjunction with other provisions of the Covenant, except when the failure by the State party to observe its obligations under article 2 is the proximate cause of a distinct violation of the Covenant directly affecting the individual claiming to be a victim. The Committee states that it does not consider the examination of whether the State party also violated its general obligations under article 2 (2) of the Covenant, read in conjunction with article 24, to be distinct from examination of the violation of the author’s rights under article 24. Consequently, and following on from its finding in Poliakov v. Belarus (CCPR/C/111/D/2030/2011), the Committee considers that the author’s claims in this regard are inadmissible. 3. First of all, I wish to reaffirm that I disagree with the two general rules laid down by the Committee in its Views concerning Poliakov v. Belarus. The first rule states that the provisions of article 2 of the Covenant set forth a general obligation for States parties and cannot give rise, when invoked separately, to a claim in a communication under the Optional Protocol. The second rule states that article 2 cannot be invoked in conjunction with other articles of the Covenant, unless it can be proven that the State party’s failure to observe its obligations under article 2 is the proximate cause of a distinct violation of the Covenant directly affecting the victim. 4. The first rule, which can be traced back to jurisprudence from the 1990s that long predates Poliakov v. Belarus, is based on the notion that the provisions of article 2 of the Covenant are of a secondary or “ancillary” nature and do not have a substantive impact on the individual rights that are enshrined in the Covenant. Since these rights are not set out until part III of the Covenant, the preamble and articles 1 to 5 cannot be directly invoked in a communication submitted under the Optional Protocol, according to the Committee’s decision in Lubicon Lake Band v. Canada (CCPR/C/38/D/167/1984). This interpretation has been the subject of much debate. I will limit myself to saying that it seems questionable for a number of reasons, particularly because it contradicts the rules of interpretation established in article 31 of the Vienna Convention on the Law of Treaties and because it is hard to understand why such an obligation may be invoked, under the Covenant, in the Committee’s concluding observations (which may of course be cited by individuals calling for the State party to respect their rights) but may not be invoked, under the same Covenant, in a communication submitted under the Optional Protocol. The Optional Protocol is, however, simply a procedural instrument for the implementation of the Covenant and it concerns the whole Covenant, not just part of it. 5. Moreover, the Committee has not refrained from taking this position in previous cases, such as Rabbae et al. v. Netherlands (CCPR/C/117/D/2124/2011, para. 9.7). While the respondent State claimed that article 20 of the Covenant was not cast in terms of a justiciable right, the Committee considered, on the contrary, that this article could be invoked by individuals who had been wronged and that it followed the logic of protection that underlies the entire Covenant. Article 20 (2) of the Covenant is similar to article 2 inasmuch as it concerns an undertaking by the State party to prohibit by law (to adopt laws, in article 2) any 10 GE.21-00755