Fourthly, there is the institution of class action,44 known in US-American procedural law45 and
also used in human rights cases under the Alien Tort Claims Act.46 It is nonexistent in IHRL de
lege lata. Here, an individual brings an action defending an own individual right but simultane-
ously compromises in the action in principle all the individuals infringed in that same substantive
right so that the individual rights of all class members are enforced. Explicit consent by the class
members is not in any case necessary and the individuals do not need to be named in the first
place. Class action litigation requires i.a. commonality, that is, the proposed class must raise
common questions of law or fact and typicality, that is, a nexus between the applicant and the
underlying class.47 The decision applies equally to all members of the class, that is, the legal and
factual consequences are bundled together, thereby creating judicial economy. Class actions are
especially suited for large-scale violations. Class actions were an invention of equity mothered
by the practical necessity of providing a procedural device so that their mere numbers would not
disable large groups of individuals, united in interests, from enforcing their rights. As stated in
32B Am Jur 2d Federal Courts § 1782, the “aggregation of individual claims in the context of a
classwide suit is an evolutionary response to the problem of injuries unremedied by the regula-
tory action of government. Where it is not economically feasible to obtain relief within the tradi-
tional framework of a multiplicity of small individual suits for damages, aggrieved persons may
be without any effective redress unless they may employ the class-action device.” Nevertheless,
the incentive to bring a class action depends very much on the fee structure for lawyers, as those
usually initiate class actions.
Fifthly, it is possible to enforce objective law (on behalf of the public interest) without a victim
or where the victim is not necessarily identified. Furthermore, infringement of subjective rights
may be claimed by a complainant who is not identical with those whose right was infringed upon
and has no special relationship with the victims (actio popularis). In Roman law, an actio popu-
laris was an action that could be brought by an individual on behalf of the public interest.48 This
amounts to (i) objective enforcement of law49 by an individual action50 (actio popularis in sensu
44 See generally from a law and economics perspective Charles Silver, “Class Actions - Representative
Proceedings”, in: Boudewijn Bouckaert/Gerrit De Geest (eds.), Encyclopedia of Law and Economics, 2000,
Cheltenham, 194-240.
45 Federal Rules of Civil Procedure 23 (a): “Prerequisites to a Class Action. One or more members of a class
may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder
of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or
defenses of the representative parties are typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests of the class.” The right of a litigant to
employ this rule as the provision for class actions in US-Federal Courts is only a procedural right, that is, the
rule does not abridge, enlarge, or modify any substantive right or alter basic jurisdictional requirements.
46 See Beth van Schaack, “Unfulfilled Promise: The Human Rights Class Action”, University of Chicago Legal
Forum (2003), 279-352.
47 See William J. Aceves, “Actio Popularis? The Class Action in International Law”, University of Chicago
Legal Forum (2003), 353-402, at 358, 399.
48 Ibid., at 356. The ICJ understood the concept in that way in South West Africa (Ethiopia v. South Africa;
Liberia v. South Africa) (1960-1966), Second Phase Judgment, ICJ Reports (1966) 6 at 47, para. 88: “(T)he
argument amounts to a plea that the Court should allow the equivalent of an “actio popularis”, or right
resident in any member of a community to take legal action in vindication of a public interest”.
49 The notion “objective law” refers to the entirety of the law regardless of whether it confers a subjective right
on somebody. In constitutional law, for example, state organization is objective law, whereas basic rights are
subjective law (and objective law).
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