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



haps not readily apparent from singular or scattered cases. This allows for a more accurate as-
sessment of the systematic harm done to a group and can potentially generate more effective
remedies to address group injuries, thus ensuring symmetry between substantive rights and
available remedies.239 Class actions are especially useful in discrimination cases, thus for the
CEDAW and the CERD, but also for indigenous or other minority groups, that allege e.g. that
state practices are destroying the groups’ unique cultural characteristics and ability to maintain
their traditional relationships with the land.240 Furthermore, injuries of a large scale with a sys-
tematic pattern as well as injuries of rights with collective aspects may be pursued by a class in
cases where individual complainants are unlikely to bring a complaint, not only because this
would involve a huge collective good aspect, but also because the victims are unlikely to bring
an own claim, be it because they are only affected on a small scale or because the educational,
economic, political and territorial situation is not conducive for bringing a claim.

In short, “collective complaints” provide complainants with several advantages. They are an ef-
ficient mechanism for pursuing large-scale litigation in cases where individual complainants are
unlikely to bring their own claims. Class actions allow such victims to seek redress in a single
proceeding on their own, thereby reducing transaction costs and promoting efficiency in litiga-
tion. Class action as well as NGO complaints without named victims also provide a degree of
anonymity to victims who might otherwise face repercussions from the defendant state for filing
individual lawsuits.

Often it is said that there is the danger of flooding human rights bodies with complaints. This
argument needs to be put into question: the caseload of human rights judicial or quasi-judicial
bodies varies immensely and is generally small, with the exception of the ECtHR. Within the
European system, there have been ongoing discussions about the heavy caseload.241 But one
should keep in mind that the ECtHR acts as a “constitutional court“ of last resort for about 800
million citizens, many of those living in countries with a doubtable human rights record. Within
the UN-system and the African system heavy workload is not an issue (even though that is of
course also a question of funds the institutions have at their disposal242). Closing the doors to the

239 See ibid., at 308. She provides a broad overview of class action cases in US law and other cases, which
amounted to class actions, even if strictly speaking they were not (the post WW II tribunals).

240 Ibid., 310.

241 Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights
September 2001, available at: <
https://wcm.coe.int/ViewDoc.jsp?id=226195&Lang=fr>. Art. 8 of the
Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending
the control system of the Convention, CETS No. 194 (opened for signature 13 May 2004), amending Art. 28
ECHR, will simplify the adjudication of repetitive violations, while preserving formal equality among rights,
authorising three-judge committees to issue judgments on the merits in routine cases under ’well-established
case-law’. The Explanatory Report on Protocol No. 14 can be found under
<
http://conventions.coe.int/Treaty/EN/Reports/Html/194.htm>.

242 See for an overview on the funding of international courts in relation to their caseload, see Cesare P.R.
Romano, “International Courts and Tribunals: Price, Financing and Output”, in: Stefan Voigt et al. (eds.),
International Conflict Resolution. Conferences on New Political Economy 23, 2005, Tübingen, forthcoming.

48



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