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

Court has not been made by the states, the way through the African Commission is in any case
still open - there will be thus a “Commission-mediated direct access“.²³⁰ Under its rules of evi-
dence, the Court is free to admit NGOs as amici curiae.²³¹

Although the African system provides not only for individual and group complaints but also for
actio popularis and altruistic NGO complaints and thus has the most broad definition of standing
of all others IHR treaties, it received considerably less communications than its European and
American predecessors.²³² Possible reasons may not only lie in the anticipated non-compliance
of the respondent state but also in the absence of provisions for legal aid or for the awarding of
costs in either the Charter or the Commission’s Rules of Procedure. Furthermore, poverty, lack
of education and lack of legal assistance might hinder access to the Commission. It remains to be
seen if the use of complaints mechanisms will rise due to the installation of the Court.

IV. Evaluation of International Human Rights Provisions of Ius Standi
from a Rational-Choice Perspective

An evaluation of the different systems according to their ius standi provisions and the substan-
tive rights covered necessarily needs to be superficial. Nevertheless, some advantages and disad-
vantages of the presented procedural provisions are discussed in the following.

With the exception of the Inter-American and the African system, all human rights treaties pro-
vide only for the possibility of an individual complaint or joinders, i.e. the individual right
holder, whose right is deemed to be infringed may bring a complaint (possibly together with oth-
ers). This might make sense for rights which only protect individual interests, but is certainly
insufficient for group or minority rights like, e.g., Art. 27 CCPR. But cases involving large col-
lective good aspects, e.g. rights which may only be collectively exercised or rights concerning
environmental matters, e.g. noise, pollution or clean water, typically involve large-scale viola-
tions. In most parts of the world, including the member states of the Council of Europe, the prob-
lem of systemic violations is also pervasive. For all those cases, collective complaints are an ap-
propriate means for several reasons. As mentioned before, judicial economy demands a bundling
of similar cases. Furthermore, collective complaints may call for a heightened scrutiny on the
part of the monitoring bodies and the public, including NGOs, and therefore foster compliance
with the judgments or views.

The UN-treaty based system is the strictest system concerning ius standi admissibility for indi-
vidual complaint mechanisms, in spite of the huge geographical area the treaties cover and in

Party which has not made such a declaration.“ As of 30 August 2004, from the 19 countries, which ratified
the Protocol, only Burkina Faso made a declaration under Art. 34 (6).

230 Viljoen, supra note 138, at 25 with several scenarios on how the interplay between the Commission and the
Court could function.

231 Art. 26 (2). See for this possibility also Abdelsalam A. Mohamed, “Individual and NGO Participation in
Human Rights Litigation before the African Court of Human and Peoples’ Rights: Lessons from the
European and Inter-American Courts of Human Rights”, Journal of African Law 43 (1999), 201-213, at 204.

232 See supra note 138.

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