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.
Jn 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.
| Identifer | oai:union.ndltd.org:ADTP/221783 |
| Date | January 2002 |
| Creators | adt@murdoch.edu.au, Arnold Laoh |
| Publisher | Murdoch University |
| Source Sets | Australiasian Digital Theses Program |
| Language | English |
| Detected Language | English |
| Rights | http://www.murdoch.edu.au/goto/CopyrightNotice, Copyright Arnold Laoh |
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