(7) The monetary costs, e.g. the requirement to be represented by a lawyer, legal aid and cost
recovery provisions will be considered by a potential complainant. It may be hypothesized that
legal aid and cost recovery provisions are conducive to claims. Here, one may also include the
possibility of amicus curiae briefs of NGOs as well as NGOs or legal firms acting as representa-
tives pro bono as those usually help the applicant without charge and thus reduce the costs. One
may also include the requirement of exhaustion of local remedies, as the exhaustion requirement
augments the costs of bringing a claim to the international body.
(8) The nature of the rights infringed.
(9) The requirement of ius standi.
The focus of this article remains with the ex ante possibility of bringing a complaint and the in-
centives to do so and therefore will deal with (6), (7), (8) and (9); the other variables are men-
tioned in that context, but are not analyzed in depth.
In order to capture the problem theoretically, independently of the provisions found de lege lata,
the relationship between the substantive provisions of human rights treaties including their col-
lective good aspect, that is the nature of the right infringed (1.) and the procedural provisions of
ius standi (2.) will be analyzed in the following. After that, the incentive structure to bring a
complaint will be analyzed in detail (3.), taking into account also the variables (6) and (7).
1. Collective Good Aspects of International Human Rights Complaints
International human rights litigation is rarely only a matter of private concern or interests affect-
ing only the parties. Even narrow issues might have a broad human rights impact.22 Although the
establishment of IHRL was motivated by the search for individual redress, it was stressed from
the beginning that individual complaint mechanisms also contribute to securing respect for the
objective obligations which are incumbent upon the States Parties to the relevant conventions.
Three functions of complaints can therefore be identified: (1) correcting the infringement of an
individual or group right (private benefit), (2) controlling the legality of public action, and (3) the
development of IHRL through precedents.
The first function (private benefit) is at first sight a private good but may also contain a collec-
tive or club good element, depending on the nature of the substantive provision. IHRL usually
conveys substantive rights and correspondingly procedural rights only to the individual. In
IHRL, the discussion on the nature of rights is mostly anchored on three issues: (i) the problem
of defining individual human rights versus group and peoples’ rights,23 (ii) the traditional differ-
entiation between civil and political rights on the one hand and economic, social and cultural
22 Shelton, supra note 8, at 614.
23 See for an overview on peoples rights Ian Brownlie, “The Rights of Peoples in International Law”, in: James
Crawford (ed.), The Rights of Peoples, 1988, Oxford, 1-16. For a more abstract discussion, see Peter Jones,
“Human Rights, Group Rights, and Peoples’ Rights”, Human Rights Quarterly 21 (1999), 80-107.