complaints, those cases provide a collective good.35 The dicta might be relevant not only for the
respective respondent state, but also for all other State Parties of the relevant treaty. It might also
be relevant for other individuals in the same factual situation. Furthermore, case law of IHRL bod-
ies also becomes increasingly important for other IHRL bodies and national courts.36 Nevertheless,
the value of a case as precedent may vary depending on the case at hand: if there is well developed
case-law, it is smaller, whereas if it takes up a new legal or factual question, it is greater.
Thus, to the extent that an individual complaint leads to the enforcement of an individual right
this is at first sight a private good. But taking a case to court always also entails a voluntary con-
tribution to the provision of a collective good. The actual degree depends on (i) the nature of the
substantive right, (ii) on the alleged violation (general-abstract law or individual measure), as
every judicially established violation of an individual’s human right carries simultaneously the
effect of controlling the legality of state action, be it legislative, judicial or administrative, and
(iii) on the value of the case as precedent. Thus, a bundling of goals takes place as a private good
(for the complainant) and a collective good (for other individuals and states) are provided simul-
taneously. It follows that potential gains (from winning a case) cannot be completely internal-
ized37 whereas potential losses (from losing a case) are completely internalized. The rational
complainant will take into consideration only the provision of the private good. It might be that
the private benefit is a sufficient incentive in order to bring a complaint. But in many cases it can
be assumed that the private benefit is not enough to bring a case - there might be a gap between
the private and the social optimal level of complaints.38 An individual alone has systematically
less incentives to take a case to court than e.g. an organization or a group representing a large
number of potential beneficiaries of a court decision as in the latter case, the optimal level is
more aligned than in the former case, especially concerning the first function.
2. Provisions of Ius Standi
Having argued that bringing complaints to IHRL bodies amounts to the provision of a collective
good, the crucial question arises: what kind of incentives for complaints are generated by the
procedural provisions of ius standi in the respective treaties?
International human rights treaties focus to a wide extent on individual rights in a substantive
sense. This focus is also reflected in the procedural provisions of human rights treaties, which in
most cases allow only for individual standing.39 Nevertheless, owning a right and having ius
standi are two different issues, i.e. the ownership of a right and the competence to assert it by a
35 Such was also the argument in Jhering, supra note 25, at 49: „Who fights for his law, fights for the law“ (my
translation).
36 The collective good character of precedents becomes ever more important in a „global jurisprudence“, which
we find emerging through cross-border citing and citation of IHRL courts (the ECtHR is the mostly cited
international tribunal). See Anne-Marie Slaughter, A New World Order, 2004, Princeton, at 79 et seq.
37 Internalization is defined as the process of reversing an externality, see supra note 14.
38 See for a more general discussion Steven Shavell, “The Level of Litigation: Private versus Social
Optimality”, 19 International Review of Law and Economics 19 (1999), 99-115.
39 See infra, at III.
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