CCPR/C/127/D/2728/2016 Annex II Individual opinion of Committee member Vasilka Sancin (dissenting) 1. I regret that I cannot join the majority in finding that the Committee is not in a position to conclude that the State party’s assessment that the measures taken by Kiribati would suffice to protect the author’s right to life under article 6 of the Covenant was clearly arbitrary or manifestly erroneous, or amounted to a denial of justice (see paras. 9.12–9.13 of its Views). This is particularly so since, in my opinion, the State party failed to present evidence of a proper assessment of the author’s and his dependent children’s access to safe drinking water in Kiribati. 2. The author argued, among other things, that by removing him and his family to Kiribati, New Zealand had violated article 6 (1) of the Covenant, because they have no access to safe drinking water, which poses an imminent threat to their lives. Evidence, uncontested by the State party, can be found in paras. 2.4, 2.6 and 5 of the Committee’s Views. 3. The State party, on the contrary, concluded that there was no evidence to support the author’s contention that he was unable to obtain potable water or that he had no access to potable water (para. 2.8 of the Views). My concern arises from the fact that the notion of “potable water” should not be equated with “safe drinking water”. Water can be designated as potable, while containing microorganisms dangerous for health, particularly for children (all three of the author’s dependent children were born in New Zealand and were thus never exposed to water conditions in Kiribati). 4. In its Views (para. 9.6), the Committee repeats the State party’s argument that, although the Immigration and Protection Tribunal found the author to be entirely credible and accepted the evidence he presented, it considered that the evidence the author provided did not establish that he faced a risk of an imminent, or likely, risk of arbitrary deprivation of life upon return to Kiribati. In particular, the Tribunal found that there was no evidence that he would be unable to grow food or access potable water, or that the Government of Kiribati had failed to take programmatic steps to provide for the basic necessities of life, in order to meet its positive obligation to fulfil the author’s right to life. Those conclusions were based on the fact that the Government of Kiribati had taken steps to address the effects of climate change, according to the 2007 National Adaptation Programme of Action. In its Views (para. 9.8), the Committee, while recognizing the hardship that may be caused by water rationing, concludes that the author has not provided sufficient information indicating that the supply of fresh water is inaccessible, insufficient or unsafe so as to produce a reasonably foreseeable threat of a health risk that would impair his right to enjoy a life with dignity or cause his unnatural or premature death. 5. However, in their reports, experts, inter alia, the Special Rapporteur on the human right to safe drinking water and sanitation on her mission to Kiribati in July 2012 (A/HRC/24/44/Add.1), warned that the National Development Strategy 2003–2007 and the Kiribati Development Plan 2008–2011 contained policies and goals of direct relevance to water, but that the priorities set for the first three years in the 2008 National Water Resources Policy and the 2010 National Sanitation Policy had yet to be implemented. It is therefore my opinion that it falls to the State party, not the author, to demonstrate that the author and his family would in fact enjoy access to safe drinking (or even potable) water in Kiribati, to comply with its positive duty to protect life from risks arising from known natural hazards. 6. Considering all of the above, I am not persuaded that the author’s claim concerning the lack of access to safe drinking water is not substantiated, as I find that the State party’s assessment of the author’s and his family situation was clearly arbitrary or manifestly erroneous. That is why, in the circumstances of the present case, I disagree with the Committee’s conclusion that the facts before it do not permit it to conclude that the author’s removal to Kiribati violated his rights under article 6 (1) of the Covenant. 15