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



significance of effectiveness. Ratification of e.g. the First Optional Protocol to the International
International Convenant on Civil and Political Rights is associated with less rights violations.9

It is submitted that we should not simply accept the empirical finding that IHRL is largely inef-
fective on the whole, yet more effective if there is the possibility of individual complaint mecha-
nisms. It seems insufficient for international human rights lawyers to stop short with the analysis
at that point. Rather we need to ask how those mechanisms can be rendered more effective. Con-
sidering the number of individuals covered by the respective IHR treaties10 and reports about
ongoing human rights abuses, it seems appropriate to hypothesize that many meritorious human
rights complaints are not brought before international judicial bodies. In short: IHRL individual
complaint mechanisms are underused too. In order to answer the question why that is so, a social
science analysis which is able to uncover the underlying incentive structure for potential com-
plainants is needed. Rights are largely illusory without the de iure and de facto capability and
incentive to enforce them, that is, IHRL can only be effective if individual victims have both de
jure and de facto access to its remedies.

Assuming that effectiveness of human rights treaties is desirable,11 and hypothesizing that indi-
vidual complaint mechanisms foster effectiveness, one needs to ask how the existing complaint
mechanisms can be rendered more effective on an international plane.12 Judicial or quasi-judicial
bodies can, of course, only act if there is a complainant. Admissibility conditions for complaints
to international bodies have a gate-keeping function in view of which cases are dealt with on
their merits. One of the most important of these admissibility conditions - and one which is le-
gally changeable - is the ius standi.13 Ius Standi under a complaints procedure determines who
may submit a complaint under one of the instruments under review. If a complainant does not
have standing under the instrument, the complaint will be rejected by the judicial body on formal
grounds, without consideration of the merits. A central issue of the standing doctrine is the na-
ture of the injury alleged, i.e. the substantive right. In most human rights treaty regimes, estab-
lishing ius standi requires both an assertion that one has suffered a distinct and palpable injury,
and that there is a fairly traceable causal connection between the claimed injury and the chal-
lenged conduct.

9 Hathaway, supra note 6, at 1999. Eric Neumayer, supra note 6, finds the same result for the Optional Protocol
of the CCPR. Succumbing to individual complaint mechanisms might also have a positive signaling effect to
other states. Antônio Augusto Cançado Trindade, “The Consolidation of the Procedural Capacity of
Individuals in the Evolution of the International Protection of Human Rights: Present State and Perspectives
at the Turn of the Century”, Columbia Human Rights Law Review 30 (1998), 1-27 also stresses the
importance of the individual complaint mechanisms for recognizing that human rights are no longer simply
"granted" by the state.

10 Approximately 1.4. billion people are covered the UN-treaty based instruments, see Jack Goldsmith/Eric
Posner, The Limits of International Law, 2005, at 120.

11 The question if states really want IHRL to be more effective is left unanswered here.

12 For an overview on theories dealing with enforcement on the national level, see Harold Hongju Koh, “How is
International Human Rights Law Enforced?”, Indiana Law Journal 74 (1997), 1397-1417.

13 For the concept of standing and different terminology concerning the concept, see Franz Matscher, Standing
Before International Courts and Tribunals, in: R. Bernhardt (ed.), Encyclopedia of Public International Law,
Vol. IV (2000), 594-600.



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