especially those specialized in IHRL, may incur smaller costs than individuals as they usually
have legal expertise within the organization and legal representation is generally not required in
IHRL. But also NGOs will be cautious not to bring frivolous suits as they easily destroy their
reputation and thus their possibility of raising funds. For the unlikely case that frivolous com-
plaints by NGOs are brought, they may be deterred by other means than closing the standing gate
in principle. Both, NGO and class actions may also diminish non-monetary costs, that is, the
problem of access to justice and repercussions by state actors as the individuals need not be
named.
Holding the infringement of an interest or right equal (ceteris paribus), it may thus be concluded
that if there is a legal provision for “collective complaints”, the probability of a complaint is
greater, as the expected net benefit of a “collective complaint” is rising due to the lower expected
costs. The possibility of “collective complaints” increases the probability of judicial control of
non-observance of rights with collective aspects and in situations where bringing an individual
complaint is too costly. Not only is the individual incentive problem mitigated as net expected
benefit increases with collective complaints, but also judicial economy demands a bundling of
those cases, as the individual standing requirement can result in a multitude of individual actions.
To sum up: “Collective complaints” diminish the de iure and therefore also the de facto hurdles
which are an obstacle to the effective control of the human rights records of states by individual
complaint mechanisms. The rational abstinence of the individual is mitigated through these legal
mechanisms. From a rational-choice point of view, individual complaints can be expected to be
few, especially in those cases where they provide a collective good through the nature of the
right. “Collective complaints” are perceived as a device to empower individuals by affording
them access to justice by courts and as a device for controlling the legality of state action. Fur-
thermore, they might have a greater impact on compliance with judgments or views as they usu-
ally attract greater publicity and thus render IHRL more effective.
III. Human Rights Treaties Provisions - a Legal Gap
We will now turn to the legal provisions found in those international treaties which allow for the
possibility of individual complaints. Each of these treaty regimes functions differently and
against a different legal and socio-economic background. Nevertheless, it is possible to concen-
trate on those variables identified earlier in the article and compare them in view of the hypothe-
sis put forward here. Under the UN-treaty based system, treaties which allow for individual
complaints are: the International Covenant on Civil and Political Rights (CCPR78) (provided that
the state is a party to the First Optional Protocol), the Convention on the Elimination of All
78 Opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976); and First Optional
Protocol to the International Covenant on Civil and Political Rights (hereinafter: FOP), opened for signature
Dec. 16, 1966, 99 U.N.T.S. 302. As of 09 June 2004, it had 152 State Parties. The First Optional Protocol to
the CCPR had 105 State Parties as of 09 June 2004.
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