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



By assumption, the expected benefit varies in accordance with the graveness of the infringement
of the right. The more fundamental the right, the more important is the expected gain for that
individual.62 It is assumed that the infringement of a subjective right of a complainant is - con-
sidering absolute benefit - in most cases a stronger impairment than the non-observance of a
collective interest or a group right. This is plausible as the subjective rights of the individual are
normally those which are the essence of his civil and political rights, such as the right to life,
liberty and trial (habeas corpus). If a complaint is brought by an individual on behalf of a minor-
ity or a group, the complainant enjoys the positive outcome only in proportion to his legal inter-
est, that is, only pro rata. This applies equally to those cases where the individual complainant
alleges as a substantive right an individual right, but knows that there are other individuals in the
same situation (e.g. environmental cases, e.g. cases involving the right to water,63 or cases where
the right may only be exercised collectively, e.g. right to association), as well as in those cases,
where de facto a genuine minority right is at stake, e.g. Art. 27 CCPR. Individual benefit from
internalization therefore originates either from the judicial acceptance of an individual claim or
by judicial acceptance of collective interests, but in the latter case only pro rata. There are thus
two reasons why individual complaints for collective interests are less likely: (i) in cases where
group rights or collective interests are at stake, the individual benefit from internalization is ei-
ther absolutely lower, as no habeas corpus rights are infringed which leads to lower expected net
benefit (negligible individual infringements or non-observance of collective interests) and (ii)
even if the benefit of internalization is - from an absolute viewpoint - the same, the incentive to
complain is lower due to the classical collective good phenomenon of free-riding, that is, the
individual will wait for others to provide the good.

The expected costs of an individual complainant are, from the point of view of an individual,
typically higher for individual complaints than for groups or mass litigation, as the individual has
to bear all costs - monetary and non-monetary - alone in the former situation. Even if it might be
the case that costs will be higher in collective complaints as there are more facts to be consid-
ered, the average cost for the individual is pro rata lower in collective complaints.

Non-monetary costs begin for many citizens with the search for legal advice,64 lack of knowl-
edge of IHRL, and problems of communication with juridical institutions. Oftentimes, the educa-
tional, economic, and territorial situation is not conducive for bringing a claim and the costs for
doing so range from immense to prohibitive. Additionally, the complainant or her lawyers might
fear repercussions by state actors or paramilitary forces in some countries.

62 Of course, there might be human rights violations which cannot be compensated by material damages. Still,
the assumption holds that winning a case provides for satisfaction and benefit.

63 The UN Committee on Economic, Social and Cultural Rights stated in its General Comment No. 15, U.N.
Doc E/C.12/2002/11 (2003) that access to water is a human right and a public commodity fundamental to life
and health. It also stipulates that water, like health, is an essential element for achieving other human rights,
especially the rights to adequate food and nutrition, housing and education.

64 This is certainly true for individual complaints, but in class action cases the initiative to complain might be
taken by a law firm or an NGO.

17



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