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

The extension of ius standi to groups may be understood as a tribute to the collective good char-
acter of the right against discrimination. As the right against discrimination has collective aspects
because even if discrimination is established concerning just one individual, it is usually dis-
criminated against as a member of a group, be it an ethnic group or being of foreign nationality.
This club good character or collective good character makes the possibility of joinders meaning-
ful. Nevertheless, as discrimination has quite a huge collective good aspect, from a rational-
choice perspective it can be argued that the incentive to file a complaint is small for an individual
due to free-rider incentives. Furthermore, joinders do not really reap cost reduction benefits to
the complainants and thus do not augment substantially augment the expected net benefit of
complaints.

c. Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW)

The CEDAW¹²⁶ defines discrimination against women in Art. 1 as “[...] any distinction, exclu-
sion or restriction made on the basis of sex which has the effect or purpose of impairing or nulli-
fying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a
basis of equality of men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.” It provides a basis for realizing equality be-
tween women and men through ensuring women’s equal access to, and equal opportunities in,
political and public life, including the right to vote and to stand for election, as well as education,
health and employment, thus rights which are to be found also in the CESCR. The same collec-
tive good reasoning as under CERD concerning discrimination applies for CEDAW.

The CEDAW Committee recognizes communications submitted by four categories of authors
under the Optional Protocol (OP): individuals; groups of individuals; authors on behalf of indi-
viduals; authors on behalf of groups of individuals.¹²⁷ It may also initiate proceedings motu pro-
prio.¹²⁸ If a communication is submitted on behalf of one or more persons, their consent must
either be proven or the author must present reasons in writing to justify the communication with-
out consent of the alleged victim(s).¹²⁹ The CEDAW Committee has not yet begun to interpret
the circumstances that would justify acting without the consent of the alleged victim(s), as there
has not yet been a complaint “on behalf” of a victim (as of May 16, 2005). The broadening of
standing provisions under the OP is thus a step in the right direction. Even though complaints
concerning discrimination matters may be called a club good for the group discriminated against,
the OP provides only for the typical individual complaint or joinder complaint mechanism in-

even though the law in question never was applied to her, nor was going to be applied. She just belonged to
the discriminated minority.

126 See for an overview of the history of the CEDAW, Andrew Byrnes/Jane Connors, “Enforcing the Human
Rights of Women: A Complaints Procedure”, Brooklyn Journal of International Law 21 (1996), 679-797.

127 Art. 2 of the OP.

128 Art. 8 of the OP.

129 See Art. 68 of the Rules of Procedure of the Committee in Annex I of the Report of the Committee on the
Elimination of Discrimination against Women, U.N. GAOR 56th Sess., U.N. Doc A/56/38 (2001).

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