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



If an individual having ius standi takes a case to an international body which confirms the al-
leged human rights abuse, the individual gets private relief in the case at hand which is a private
good. Yet, at the same time, the individual provides a collective good by setting a legal precedent
and/or by providing the factual basis in court for individuals similarly situated. This point is even
more valid for substantive rights, which entail a collective good aspect per se (e.g. minority
rights or large-scale violations).

A short comment on the theory of collective goods and the incentives created by a collective
good problem is apposite here. In economics, a collective (or public) good is a good that is hard
or even impossible to produce for private profit, because the market fails to account for its large
beneficial externalities.14 By definition, collective goods possess two properties. They are (1)
non-rivalrous - its benefits fail to exhibit consumption scarcity; once it has been produced,
everyone can benefit from it without diminishing other’s enjoyment and (2) non-excludable -
once it has been created, it is very difficult or impossible to prevent access to the good. Examples
are a street signs, clean air or the rule of law. A pure collective good is an extreme case though;
many goods encompass private and public aspects.15 In IHRL, a complaint is usually a mixed
good. This poses immediately the question of who, then, provides public goods. Once they exist,
they are there for all to enjoy. So it is often the most rational strategy for private actors to let oth-
ers go first and seek to enjoy the good without contributing to its production. This is a dilemma
that public goods face. Without some sort of collective-action mechanism, they risk being under-
provided due to the free-rider incentive as individuals usually take into account the private bene-
fit, but not the public benefit when acting. If all individuals (victims) would have perfect infor-
mation, then a collective good problem can be solved through pure coordination.16 E.g., if sev-
eral victims are affected and if this group of victims could be organized, the collective action
problem could be mitigated. But once there is asymmetric information and participation in the
collective good is voluntary, the problem is not perfectly solvable.17

Taking a case to court amounts to a voluntary contribution to the provision of a collective good
as potential gains (from winning) cannot be completely internalized whereas potential losses
(from losing) are completely internalized. From a rational-choice perspective, there are few in-
centives for an individual to provide a collective good. If one focuses on the possibility of judi-
cial enforcement as a means of fostering compliance, it can be diagnosed that substantive rights
and procedural rights are not effectively aligned in most human rights treaties.

14 An externality occurs in economics when a decision (for example, to pollute the atmosphere) causes costs or
benefits to individuals or groups other than the person making the decision. In other words, the decision-
maker does not bear all of the costs or reap all of the gains from his action. Also human rights violations may
be viewed as externalities.

15 For a general treatment public goods see Richard Cornes/Todd Sandler, The Theory of Externalities, Public
Goods, and Club Goods, 1986. A club good allows exclusion for those not in the “club”; see for the club
good notion James M. Buchanan, “An Economic Theory of Clubs”, Economica, 32 (1965), 1-14.

16 Mark Bagnoli/Barton L. Lipman, “Private Provision of Public Goods Can Be Efficient”, Public Choice 74
(1992), 59-78.

17 See Martin Hellwig, Public-Good Provision with Many Participants, Review of Economic Studies 70 (2003),
589-614.



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