many human rights thus have aspects of a collective or club good, either because the nature of
the right per se includes a collective aspect or because de facto many individuals are affected,
even if they are dealt with in human rights treaties as individual rights.
We will now turn to the second function, i.e. controlling the legality of public action. This comes
in two forms: (1) Control of legality has the function of deterrence, i.e. general prevention. Indi-
vidual complaints are a legal governance strategy which comes into effect ex post, that is, after
the state acted. Nevertheless, the “threat potential” of complaints may also take effect ex ante as
the state actors can be expected to be rational in the sense that they anticipate the risk of future
sanctions.31 The mere possibility of control provides incentives for the states and can thus be
expected to lead to an altogether lower level of negative externalities caused by human rights
abuses. (2) The control of legality applies with respect to the case which is submitted, that is the
decision may result in changes to internal legislation and administrative practices.32 Depending
on the nature of the violation found, the individual or general measures to be adopted by the re-
spondent State may be categorized, generally, as follows: (i) the need to amend legislation; (ii)
the need to take appropriate action in respect of agents of the State; (iii) the need to encourage an
appropriate interpretation of domestic legislation and/or jurisprudence; (iv) the need to reopen
domestic proceedings.33 This applies equally to the infringement of rights through an individual
administrative or judicial measure applying the law as well as to the infringement of rights by the
law itself. In the latter case, the collective good character of a decision is even greater, as the
domestic law as such is declared in violation of the respective treaty and therefore the case has, if
the decision is properly implemented, consequences for the entire country, that is de facto inter
omnes. Decisions regarding administrative or judicial practices which are deemed an infringe-
ment of rights may also have an important collective good aspect, as e.g. overlong criminal hear-
ings, especially if they are systemic.
The third function of complaints regards the setting of a legal precedent. In all the cases where the
dicta of the court are published, the legal aspect of the case is relevant both for the individual case
at hand (irrespective of the substantive right) and for the development of IHRL with a view to
similar future cases. Most treaties are viewed as “living instruments”,34 and as IHRL develops by
<http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&key=41373&portal=hbkm&source=external&tabl
e=285953B33D3AF94893DC49EF6600CEBD49>.
30 See Case of Hatton and others v. The United Kingdom (Appl. No. 36022/97), Judgment of 8 July 2003,
[GC], 2003-VIII Eur. Ct. H.R at 191, which dealt with noise from the Heathrow airport.
31 Sanctions are to be understood in a broad sense, including reputational effects.
32 The ECtHR states as follows: “A finding by the Court of a violation of the Convention has often led the
respondent State, and sometimes even other Contracting States, to take general measures to comply with the
decision in question and the higher domestic courts to adapt their case-law. In some cases, the reference of a
case to the Court has of itself prompted or expedited amendments to legislation and regulations or changes in
the case-law.” It publishes those cases, which are deemed to have effects of a general nature separately under
<http://www.echr.coe.int/Eng/EDocs/EffectsOfJudgments.html>.
33 See Opinion No. 209/2002 on the Implementation of the Judgments of the European Court of Human Rights,
supra note 20, at para. 20. See for an overview of the obligations indicated by the HRC, see Dominic
MacGoldrick, The Human Rights Committee: its Role in the Development of the International Covenant on
Civil and Political Rights, 1994, Oxford, at 152 et seq.
34 This is the view of the ECtHR, see Tyrer v. the United Kingdom, Judgment of 25 April 1978, 26 Eur.Ct. H.R
(ser. A), at 15-16, at para. 31 and subsequent case-law.
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