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



shows that IHRL is largely ineffective.7 Why is that so? International bodies carry out their task
of human rights enforcement and compliance monitoring mainly based on self-reporting by
states or on inter-state complaints. The reporting system is considered the backbone of monitor-
ing compliance. Still, those procedures may be deemed insufficient for ensuring compliance.
Inter-state complaints have been thoroughly and predictably underused.8 In contrast, individual
complaint mechanisms are the only enforcement mechanism having at least a weak empirical

rarely does treaty ratification have unconditional effects on human rights. Instead, improvement in human
rights is typically more likely the more democratic the country or the more international non-governmental
organizations its citizens participate in. Conversely, in very autocratic regimes with weak civil society,
ratification can be expected to have no effect and is sometimes even associated with more rights violation. He
also summarizes the findings of less comprehensive empirical studies which all find more or less the same
result.

7 Effectiveness and compliance are different but related notions. Determining whether a state complies with a
treaty requires comparing the relevant state activity with the treaty’s requirements. Effectiveness is directly
related to, but distinct from, compliance and regards causality. A state may comply with a treaty, that is, its
actions comport with the requirements of the treaty, but the treaty may nonetheless be ineffective in changing
that state’s practices. For these notions see Andrew T. Guzman, “A Compliance-Based Theory of
International Law”, California Law Review 90 (2002), 1823-1887, for compliance theories Harold Hongju
Koh, “Why do Nations Obey International Law?”, Yale Law Journal 106 (1997), 2599-2659 and Laurence R.
Helfer/Anne-Marie Slaughter, “Toward a Theory of Effective Supranational Adjudication”, Yale Law
Journal 107 (1997), 273-391.

Abstracting from statistical notions of effectiveness and adopting a broader notion, one may argue that IHRL
may build up a mentality conducive to human rights in responsible organs of the state and it may influence
national and international legitimacy of a government. It may also signal reliance, see David H. Moore, “A
Signalling Theory of Human Rights Compliance”, Northwestern University Law Review 97 (2003), 879-910,
at 905. Court decisions may also improve public deliberation and pressure on the state and therefore change
the discourse, see Thomas Risse, “International Norms and Domestic Change: Arguing and Communicative
Behavior in the Human Rights Area”, Politics and Society 27 (1999), 529-559, who advocates a “spiral
theory” of norm socialization, which applies also in the field of IHRL. Thus, the approach taken in this paper
does not contradict the “spiral theory” or other theories but rather adds one component.

8 Dinah Shelton, “The Participation of Nongovernmental Organizations in International Judicial Proceedings”,
American Journal of International Law 88 (1994), 611-642, at 613 and 615; Anne F. Bayefsky, The UN
Human Rights Treaty System, 2001, The Hague, at xv and Laurence Helfer/Anne-Marie Slaughter, supra
note 7, at 298 et seq. Inter-state complaints are possible under the following agreements: Art. 24 of the
European Convention on Human Rights and Fundamental Freedoms (ECHR); Art. 45 of the American
Convention on Human Rights (ACHR); Art. 49 of the African Charter on Human and Peoples’ Rights
(African Charter); Art. 41 of the International Convenant on Civil and Political Rights (CCPR); Art. 11 of the
Convention on the Elimination of Racial Discrimination (CERD); and Art. 22 of the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Consequently, a State can
lodge an application with a treaty-body when it has reason to believe that another State has violated a right
guaranteed in one of these conventions. Up to 2001, the inter-state complaint procedures of the CCPR, the
CERD and the ACHR have never been used, and the CAT has been used twice, however. Under the ECHR
there have been 21 applications by states in 13 cases relating to no more than seven situations, see S0ren C.
Prebensen, “Inter-State Complaints Under Treaty Provisions - The Experience Under the European
Convention on Human Rights”, in: Gudmundur Alfredsson et al. (eds.), International Human Rights
Monitoring Mechanisms. Essays in Honour of Jakob Th. Moller, 2001, The Hague, 533-559, at 543. As
Pieter van Dijk/Godefridus J. van Hoof, Theory and Practice of the European Convention on Human Rights,
1998, The Hague, at 43 point out: [I]t is evident that the right of complaint of States has proved not to be very
effective....[T]he contracting States have not been willing to lodge complaints about situations in other States

where no special interest of their own was involved. Such a step generally even runs counter to their interest
in that a charge of violation of the Convention is bound to be considered an unfriendly act by the other party,
with all the political consequences that may be involved.” Suggestions for strengthening the inter-state
complaint mechanisms are given by Scott Leckie, “The Inter-State Complaint Procedure in International
Human Rights Law: Hopeful Prospects or Wishful Thinking?”, Human Rights Quarterly 10 (1988), 249-303.



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