The only innovation is subsection (e), which stipulates that communications ‘exclusively based on reports disseminated by mass media’ are inadmissible. In reality, its addition was not necessary since a submission that only supplies evidence based on reports disseminated by mass media can fall into the category of ‘manifestly ill-founded’ or
‘insufficiently substantiated’ communications established in the same subsection. Be that as it may, it is hard to imagine a communication submitted by the alleged victims or groups of victims of a rights violation in which their grievance would be based solely on media reports when, by definition, they themselves had suffered the alleged violation. The purpose of this addition therefore seems to be to ensure that communications submitted on behalf of victims or groups of victims without their consent comply with a minimum standard of proof. Although such a specific addition was not necessary, it should be stressed that the requirement that an alleged violation be sufficiently substantiated means that all submissions to international mechanisms should meet a minimum degree of reliability, especially when being made on behalf of the alleged victims.
4 Communications Not Revealing a Clear
human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’.62
The U.K., backed by a number of other States, proposed the following text: ‘The Committee may decline to consider a communication where it does not appear to reveal that the author has been significantly disadvantaged.’ The justification for the provision was that in the event of excessive numbers of cases, the provision would ‘offer flexibility to the Committee to allocate time and resources effectively’. There was considerable debate in the Working Group about whether any similar workload crisis was likely under the OP-ICESCR and concerns were expressed that leaving the application of this new consideration to the discretion of the Committee may lead to inconsistencies. The U.K. said that ‘[w]hile it would have preferred “shall”, it considered that the Committee should be relied upon to adopt a consistent approach in the light of its workload and the prevailing circumstances’.63 In order to clarify that the discretionary consideration of clear disadvantage would only be applied only when it was necessary because of workload, the additional phrase ‘if necessary’ was added in the final text.64
It should be emphasised that, even where made necessary by workload or other circumstances, declaring such cases inadmissible is left to the discretion of the Committee and is thus optional rather than obligatory. The Committee, therefore, has not included Article 4 among the admissibility criteria that must be considered prior to proceeding to a consideration of the merits.65 The provision also includes additional grounds for justifying admission of the case by the Committee, namely that the communication raises a serious issue of general importance even if the author of the communication has not suffered a ‘clear disadvantage’.66
The proposal to add this provision partly came from those States who were least enthusiastic about a communications mechanism for ESC rights. The acceptance of the provision could be viewed as part of efforts to
62 Ibid. The English version of Article 12 of Protocol Nº 14 to the European Convention on Human Rights speaks of ‘significant disadvantage’ while the French version uses the phrase ‘significant harm’ (préjudice important). Since the negotiating language of the Working Group on the Optional Protocol to the ICESCR was English, the wording proposed for Article 4 was based on the English version of Article 12 of Protocol Nº 14 to the European Convention.
63 Fifth report of the Open-Ended Working Group to consider options regarding the elaboration of an Optional Protocol, 6 May 2008, A/HRC/8/7 (Fifth Working Group Session Report) at para. 157.
64 Ibid, at p. 34.
65 Committee on Economic, Social and Cultural Rights, Provisional Rules of Procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted by the Committee at its forty-ninth session (12-30 November 2012) E/C.12/49/3 Rule 14, para. 5.
66 OP-ICESCR (n. 2 above), Article 4.
reach a consensus on the text, in particular as a trade-off for accepting the comprehensive approach taken with regard to the Committee’s subject matter jurisdiction. However, Article 4 also had support from the Chairperson after she had met with the President of the European Court of Human Rights and a number of NGOs championed the inclusion of the clause.67
Comparatively speaking, when considering other instruments from the universal human rights system that have established communications procedures, the addition of this new ground for inadmissibility was not necessary. Grounds such as ‘manifestly ill-founded’ or ‘insufficiently substantiated’ communications or ‘abuse of the right to submit a communication’ were sufficiently flexible for submissions in which, from the onset, there is clearly such little substance to the alleged violation to be declared admissible by the Committee.
The formula chosen is rather questionable since the notion of
‘disadvantage’ that has emerged in the context of standards on discrimination implies making a comparison between the person alleging the violation and the situation of others.68 If read literally, this formula could give the impression that all allegations require a comparative judgment when, in reality, the latter is only relevant in cases in which solely a violation of the principle of equality or the prohibition of discrimination is being argued. For example, allegations that the substantive obligations stemming from the right to education or the right to health do not depend on a comparison being made with the situation of other right-holders: It will suffice to show that the claimant is the victim of a violation. However, given the context in which this provision has emerged, it is clear that there was no intention of altering the substantive standards that define States’ obligations or the Committee’s subject matter jurisdiction for considering communications – the notion of ‘disadvantage’
should, therefore, be understood to mean ‘grievance’ or ‘harm’.
The justification for incorporating this new ground for inadmissibility into the European human rights system, namely, the need to find solutions to ease the workload of the European Court of Human Rights, was of little relevance in this case, considering that the communications mechanism under the OP-ICESCR was not yet in operation. To assume that the Committee would be overburdened with communications was nothing more than speculation.
67 See discussion in M. Langford, ‘Closing the Gap? An Introduction to the Optional Protocol’, Nordic Journal for Human Rights, Vol. 27 No.1 (2009), pp.1-28, at 23-4.
68 This criticism also applies to the English version of Article 12 of Protocol Nº 14 to the European Convention on Human Rights, though not to the French version since the notion of harm does not depend on comparing it to the harm suffered by others.
In any event, it is important to highlight that the discretionary nature of this criterion should not place a new burden on the author of a communication, namely that of proving that he or she has suffered a clear disadvantage. The author already has the burden of illustrating that the alleged treatment amounts to a violation under the Covenant and subsequently put forth evidence proving that the abuse was committed.
The Committee will be required to decide which circumstances make the exercise of discretion under Article 4 necessary and, in those circumstances, whether to exercise it. It will then be the Committee’s task, in those cases where it finds that it is necessary to invoke Article 4, to consider submissions from the Parties, to assess whether the alleged violation amounted to a ‘clear disadvantage’ and if not whether the case
‘raises a serious issue of general importance’.69