Making International Human Rights Protection More Effective: A Rational-Choice Approach to the Effectiveness of Ius Standi Provisions



judicial process are not identical.40 Rights and ius standi do not need to be identically derived.
They are logically independent.41

Ius standi, or the capacity to file a complaint, may be differentiated into further subcategories,
which are sometimes not clearly distinguished, neither in court decisions nor in the literature.
There is firstly the (procedural) capacity to be a party to a complaint and secondly the (substan-
tive) victim requirement, that is, the question of whose right is allegedly infringed. Following
this distinction, it is possible to distinguish abstractly different forms of ius standi with a view to
the victim requirement:42

First, an individual substantive right may be enforced by an individual complaint (including ju-
ridical persons); thereby an individual or entity claims an own injury: an individual right is
claimed by its owner in his own name. All IHRL treaties provide that possibility.

Secondly, an individual substantive right is claimed by its owner in his own name, but there are
several individuals in a similar situation, which all claim their own right in their own name. This
would be the typical case of a joinder. Either the individuals already file the complaint together
or the judicial body may decide to form a joinder. The different individual cases are bundled
together, but in spite of possible legal and factual similarities, the legal consequences in each
case are singular, including the admissibility requirements.43

Thirdly, substantively there can be group rights or a bundle of individual rights (such as Art. 27
CCPR as interpreted by the HRC) amounting to group rights. Here, all members of the group are
infringed in a substantive right. The right bearer can be the group as a whole or the members of a
group individually. A minority right or a group holding a right, e.g. landuse, would be a case in
point. Theoretically, those may be claimed by either the whole group per se or by one representa-
tive on behalf of a group, that is, procedurally either the group as such may bring a complaint, or
one representative claims an own right and simultaneously the individual rights of named and
identified individuals or at least of an identifiable group. Usually, all individuals being part of the
group have to give their consent, but that does not need to be the case. Judicial bodies sometimes
can accept petitions from one representative, e.g. the chief of a tribe. Here, the legal consequence
applies to all individuals within the group. Those kinds of complaints will be named “group
complaints”.

40 See for a broad discussion concerning minorities and indigenous people and ius standi Anna Meijknecht,
Towards International Personality. The Position of Minorities and Indigenous Peoples in International Law,
2001, Antwerpen, Chapter II and V, esp. at 175 et seq.

41    Hersch Lauterpacht, International Law and Human Rights, 1950, London, at 54 et seq.

42    For an examination of the evolution of the notion of "victim" (including the potential victim) in the

international law of human rights, see Antônio Augusto Cançado Trindade, “Co-Existence and Co-
Ordination of Mechanisms of International Protection of Human Rights”, Recueil des Cours/Académie de
Droit International de La Haye 202 (1987), 9-435, at 262-283.

43 Most Rules of Procedure of the UN treaty bodies allow for that and equally those of the regional human
rights treaties.

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