Another ever more prominent form of participation of non-victims in international adjudication
is the amicus curiae form. Hereby, NGOs, expert or other interested parties may suggest to a
judicial body matters of law and fact within their knowledge.54 Amici Curiae have the advantage
to allow participation not only on the basis of an infringed right but on the basis of a general in-
terest, to protect unrepresented persons or the public interest. On the one hand, an amicus brief is
generally less costly and time consuming than intervention or starting a complaint. It may also
generate a broader spectrum of information for the judicial body otherwise not available and thus
produce a collective good. On the other hand, amici are not entitled to any compensation of
costs, which makes the expenses of the amicus non-recoverable.55 As most international human
rights judicial bodies require a victim attribute for standing, the amicus curiae possibility is a
useful complement for participation. Nevertheless, amicus curiae can only come in once a com-
plaint is brought - thus the gate-keeping function of “standing” is upheld. In Part III it will be
mentioned if the respective international human rights treaties allow for amicus curiae, but the
incentives of filing amicus briefs for non-victims will not be separately discussed.56
3. The Rationale for “Collective Complaints” in International Human Rights Law
As spelled out above, there are several procedural possibilities to deal with the infringement of
individual rights and collective/group interests. De lege lata, in IHRL the infringement of a sub-
jective right corresponds mainly with an individual complaint possibility, if at all. Even if collec-
tive or group interests are infringed by the state, it is in most cases only the individual who may
bring a complaint. Those legal provisions generate incentives or disincentives for potential com-
plainants. Thus, from a rational-choice perspective, it is not deemed satisfactory to look only at
legal provisions; rather it is also necessary to analyze in detail the factual incentive structures for
launching complaints in the first place. We will focus here on the incentive structure with a view
on ius standi on the one hand and the nature of the right infringed on the other hand, turning to
the detailed analysis of an individuals´ incentive to complain.
An individual will complain only if his expected cost of doing so is less than his expected benefit
(expected net benefit),57 that is, she will complain if and only if the expected net benefit is posi-
54 Some systems require registration for NGOs in order to have consultative status, see e.g. ECOSOC Res.
1996/31, Consultative relationship between the United Nations and non-governmental organizations,
Resolutions and Decisions of the Economic and Social Council, 1996, Supp. No. 1, U.N. Doc. E/1996/96
(1997), at 53. See for details Schwitter Marsiaj, supra note 52, at 8 et seq.
55 See for more details Shelton, supra note 8, at 611 et seq., for the advantages and disadvantages of amicus
curiae.
56 For an overview of participation by amici in the ICJ, the ECtHR, the ECJ and the IACHR, see Shelton, supra
note 8, favoring a broad nongovernmental amicus participation and for a broad overview of NGO participa-
tion, see Schwitter Marsiaj, supra note 52.
57 It is difficult and debatable to put numbers on the value of rights, but for the sake of simplicity let’s assume
that a right with a value assigned to it of 100 Euro was infringed, yet if it will cost 150 Euro to bring a
complaint, the individual will do nothing because the costs of recovery exceed the benefit. A rational
complainant will not spend the money. Even if it were to cost 50 Euro to get an award of 100 Euro, choosing
not to act may still be justified by an individuals’ "rational apathy". Although the benefits exceed the cost, a
rational complainant would rather let someone else enforce rights on their behalf and thus "free-ride",
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