G. Receivability and admissibility
The Optional Protocol sets out strict admissibility criteria (arts. 1–2), which must be met before the Committee can decide
on the merits. Article 1 sets out the basic requirements that a communication must meet for the Committee to receive and consider
it. If these requirements are clearly not met, the Committee's secretariat cannot register the communication and it does not
even get to the admissibility stage. The Committee might have to consider some of these criteria itself at the stage of admissibility,
if they were not clear at the registration stage. These criteria are set out here in question form:
- Is the communication from an individual or a group of individuals? In other words, does the author have standing to bring the communication under the Optional Protocol? If not, the Committee will reject it on formal grounds. For instance,
if an author brings a complaint without demonstrating that it is on behalf of an individual or a group of individuals—for
example, without furnishing a power of attorney—then the author will not have standing.
- Does the individual or group claim to be a victim of a violation of the Convention? This is the victim requirement. The communication must identify an individual or a group of individuals whose rights have suffered. It is not
possible to bring a general claim against a State, e.g., on behalf of the broader community for failure to fulfil its obligations
but without demonstrating that someone has been a victim of this failure.
- Is the claimant subject to the State's jurisdiction? There must be a connection between the victim and the State party against
which the allegation is made.
- Has the State ratified the Optional Protocol? If the State has not accepted the Committee's jurisdiction to receive and consider
communications, the Committee cannot consider any communication against that State.
Article 2 sets out the requirements for admissibility. These apply to those communications that are registered and that the
Committee considers. As noted above, the Committee could decide that the communication does not meet the admissibility requirements
after all and so there is no need to consider its merits.
- Is the alleged victim anonymous? If so, the Committee cannot admit the communication. It should be noted that for all communications
the identity of the author can nevertheless remain confidential, if the author so requests.
- Has the communication come before another international procedure of investigation or settlement? This criterion aims at ensuring
that a given international or regional body does not examine a communication if the same matter is being (simultaneous procedures)
or has already been (successive procedures) examined by another international procedure.
- Are domestic remedies exhausted? The exhaustion of domestic remedies is an important rule of law, which applies to other dispute
mechanisms, too. Its purpose is to give national authorities, generally courts, an opportunity to deal with allegations of
human rights violations first. Indeed, an important aim of communications procedures is to strengthen national human rights
protection mechanisms, which are more easily accessed and likely to provide quicker and legally enforceable remedies to victims.
Having exhausted domestic remedies is a key admissibility criterion under the Optional Protocol. For this reason, it is important
for authors to include as much information as possible in their submissions on how they have exhausted domestic remedies.
As noted above, the submission can indicate the type of action taken, the authority to which it was addressed, when the action
was taken, the final decision and so on. The Committee has also asked why domestic remedies were not exhausted. Indeed, according
to article 2 (d), this requirement can be waived in some cases: where the application of the remedy is unreasonably prolonged
or unlikely to bring effective relief. This mirrors developments in other areas of international law. For example, the European
Court of Human Rights requires domestic remedies to have been exhausted where remedies are “available” and “effective”. The
inter-American system has identified three exceptions to the rule: (1) the domestic legislation of the State does not afford
due process of law for this rule; (2) the party alleging violation of rights has been denied access to remedies under domestic
law or has been prevented from exhausting them; (3) there has been unwarranted delay in rendering a final judgement under
the aforementioned remedies.
- Is the communication manifestly unfounded or unsubstantiated? This allows the Committee to exclude communications which are
contrary to the objects and purposes of the Convention.
- Did the alleged conduct occur after the entry into force of the Optional Protocol for the State? The State cannot be held
to account by the Committee for an action that occurred prior to its acceptance of the communications procedure.