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The availability of international judicial review of government breaches of human rights

Laoh, Arnold (2006) The availability of international judicial review of government breaches of human rights. PhD thesis, Murdoch University.

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The main objective of this thesis is to provide description, analysis and criticism on the existing international instruments for the promotion of respect and protection of human rights, as well as a suggestion to the international community through the United Nations mechanism to adopt an additional legal instrument as a complementary procedure. This, in turn, should serve as an extra-pressure upon the State governments to bring their internal legal system in the same line as the international standards for the protection of human rights.

It is being argued in this work that the current international procedures available to individual alleging their human rights have been abused by State are no longer sufficient and therefore another procedure should be introduced and put into place. The chapter The Case of Indonesia serves as a good (or bad?) example of State abusive conduct and remain untouchable under international mechanisms. Despite gross and systematic violations of human rights Indonesian government is still immune due to executive-heavy legislation system, restricted judicial review as a result of a corrupt judiciary and impunity of government and other public agencies.

The study fvstly concentrates on the procedures available at international level for dealing with individual complaint alleging human rights violations. Different procedures both under Charter and treaty provisions are analysed in the attempt to describe their advantages and disadvantages. Two Charter-based procedures dealt with in the discussion cover the communication procedure under the United Nations Economic and Social Council (ECOSOC) which includes the 1503 procedure. Treaty-based procedures are given special attention in this thesis which include the procedure before the Human Rights Committee (HRC), the Committee on the Elimination of Racial Discrimination (CERD), the Committee against Torture (CAT) and the Committee on the Elimination of Discrimination against Women (CEDAW).

The discussion further presents a critical appraisal of those procedures in which the limitations and weaknesses of the procedures are analysed followed by the suggestion to adopt an additional procedure to complement the current mechanisms available to individual seeking remedies for human rights violations. The limitations of the procedures featured largely by the fact that the decisions resulted from those procedures are legally non-binding. And this all what an individual can receive after being allowed to bring hisher petition before the Committee. Before one is permitted to communicate with one of the Committee hetshe must first meet all the conditions of admissibility. The condition exhaustion of all domestic remedies can virtually be seen as a hindrance for individual to communicate with the Committee. In order to support this argument several decisions on several individual complaints handed down by the HRC are presented in this study.

Finally, the study introduces a complementary procedure called International Judicial Review by which the State Constitutions and legislation can be examined whether or not they are in conformity with international human rights standards and norms. If found inconsistent the Constitutions or legislation must be declared invalid. The power to review is given to the International Court of Justice (ICJ) as the principal judicial organ of The United Nations. And as a World Court the decision made by the ICJ has legally binding power.

Item Type: Thesis (PhD)
Murdoch Affiliation(s): School of Law
Supervisor(s): De Varennes, Fernand
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