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

cluding the victim requirement, but not for class actions or NGO complaints.¹³⁰ Nevertheless, the
factual situation of many women in the world concerning their access to justice and their socio-
economic circumstances make the provision that communications may be filed on behalf of
women very meaningful. The same reasoning applies for the initiation motu proprio by the CE-
DAW Committee, as monetary and non-monetary costs for women in many parts of the world
may be too high to bring a communication.

d. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT)

The CAT bans torture under all circumstances. In particular, it defines torture, requires states to
take effective legal and other measures to prevent torture, and declares that no state of emer-
gency, other external threats, or orders from a superior officer or authority may be invoked to
justify torture. It also forbids activities which do not rise to the level of torture, but which consti-
tute cruel or degrading treatment. Even if the right not to be tortured is an individual right with
no collective good aspect, the State Parties do need to undertake under CAT several obligations,
such as putting in place legal measures to prevent torture and to provide adequate remedies,
which have de facto inter omnes effect.

The Committee against Torture can receive and consider communications from individuals who
claim to be victims of a violation of the provisions of the Convention by a State Party.¹³¹ It does
not provide for communications of groups of individuals, but under rule 105 (4) of its Rules of
Procedure, it may, if it deems appropriate, consider two or more communications together, thus
joinders are allowed. Furthermore, the complaint may be submitted not only by the individual
herself or by her relatives or designated representatives but also by others as author on behalf of
an alleged victim when it appears that the victim is unable personally to submit the complaint,
and when appropriate authorization is submitted to the Committee.¹³² Communications may thus
be filed by NGOs as representatives on behalf of victims.¹³³ It is nevertheless unclear, under
what circumstances a complaint may be brought without the consent of the victim, e.g. by an
NGO if the victim is not in a position to give consent.¹³⁴ Under rule 62 of its Rules of Procedure,
the Committee invites NGOs to submit information relevant to its activities and thus explicitly
allows for amicus curiae briefs. As the prohibition of torture is a classical habeas corpus right,
that is an individual right, it is appropriate to allow only for individual complaints. Nevertheless,
torture is often systemic and thus NGO complaints or class actions may also be appropriate to
alleviate the costs of brining complaints.

130 See for details Byrnes/Connors, supra note 126.

131 Rule 107 (a) CAT Rules of Procedure, U.N. Doc CAT/C/3/Rev.4 at 38, of 9 August 2002.

132 Art. 22 (1) CAT and Rule 107 (a) CAT Rules of Procedure.

133 See e.g Dhaou. Belgacem Thabti v. Tunisia, Communication No. 187/2001, UN GAOR 59th Sess., Supp.
No. 44, U. N. Doc. (A/59/44) at 167 (2004), where the victim was represented by an NGO, which
complained on behalf of him.

134 Michael O'Flaherty, “Individual Communications: The Convention Against Torture and the Convention on
the Elimination of All Forms of Racial Discrimination”, in Sarah Pritchard (ed.), Indigenous Peoples, the
United Nations and Human Rights, 1998, London, 116-128, at 120.

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