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



question. Judicial considerations of restraint for political reasons should be found in the substan-
tive part of a judgment, not in the admissibility of a case.

V. Conclusion

Empirical research shows that IHRL is largely ineffective, but individual complaint procedures
are seen as one instrument that is at least minimally effective. In order to foster effectiveness, it
therefore seems appropriate to strengthen the system of individual complaints by giving the vic-
tims their own enforcement tools. If enforcement by private actors is an adequate tool, we need
to ask how we can render those instruments more effective. In order to answer that question, a
social science analysis which is able to uncover the underlying incentive structure for potential
complainants is needed. This article used the rational-choice approach. If we take a closer look at
how individual complaint mechanisms function, it is discernible that the legal situation is such as
to deter complaints from a rational-choice perspective. IHRL privileges individual subjective
rights through its procedural provisions. It discriminates against interests which may affect a
whole group or minority or the general public (e.g. environmental concerns). We have shown
that the individual incentive to bring altruistic complaints on behalf of groups and for large-scale
violations is small. Even if collective interests simultaneously affect an individual right, it is of-
ten the case that a lot of people are affected, but only to a minor extent, which may lead to a de
facto under-enforcement as an individual action is not deemed attractive from a rational individ-
ual’s point of view. This is especially true in cases where the benefit of the complaint would
serve a whole collectivity, like e.g. in environmental or minority rights cases. The current legal
situation hinders the effective enforcement of the human rights treaties, if one takes into account
the incentive structure for potential complainants.249 “Collective complaints” change the underly-
ing incentives for bringing complaints. They are, especially in developing countries, often the
only means for bringing human rights violations before international bodies.

To sum up: If we take international human rights treaties seriously, we need to think about effec-
tive procedural provisions, which are commensurate to the occurring human rights violations.
Fostering the private enforcement of IHRL seems an appropriate means.

249 For a similar conclusion, see Bayefsky, supra note 8, at xv.

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