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Judicial Review System in Safeguarding Human Rights-From International Perspective and Domestic Perspective Especially in China

Li, Xiang (2006)
Department of Law
Abstract
This thesis concerns the importance of judicial review system in safeguarding human rights. It examines different review systems on international level, regional level and domestic level. In the second half of the thesis, China, as a specially targeted country, has been examined in better detail of its judicial review system. The aim of this thesis is to, through introduction of, and comparison with other systems developed in the world, examine situations and problems existing in present judicial review system in China, and try to find, at the end of the thesis, some useful solutions for China's possible further reform in related legal area, specially in its judicial review system. The reason as to why this topic is chosen mainly lies in... (More)
This thesis concerns the importance of judicial review system in safeguarding human rights. It examines different review systems on international level, regional level and domestic level. In the second half of the thesis, China, as a specially targeted country, has been examined in better detail of its judicial review system. The aim of this thesis is to, through introduction of, and comparison with other systems developed in the world, examine situations and problems existing in present judicial review system in China, and try to find, at the end of the thesis, some useful solutions for China's possible further reform in related legal area, specially in its judicial review system. The reason as to why this topic is chosen mainly lies in the fact that the author has been thinking since the programme started in September 2005: What is the most important aspect in safeguarding human rights and bringing them into reality in Public International Law? Formulation of legal instruments, reform of international institutions or other? And my answer is: the implementation of International Law. The world incorporates moral values into law mainly because the values in the form of legitimacy can be realized through enforcing the law. If a law containing moral values remains on paper and symbolic, no matter how perfectly it is formulated, it is meaningless. As long as the law is enforced, the values enshrined in it can come true. The more effectively it is enforced, the better the values are realized. As part of International Law, international human rights law require states parties take all possible measures to implement the law, among those measures, an effective remedy for violation of human rights is required, and if a state fails to do so, there are remedies available on higher level in regional scope or in the spectrum of the UN. The remarkable achievements made by the European Court of Human Rights testified the significant role of judicial review in safeguarding human rights, and the development and functioning of the Human Rights Committee also proves its value. China, as a member of most international human rights instruments, under the obligation of which, is expected to build up an effective judicial review system in safeguarding people's rights. The economic development, the accession to the WTO and practical situation in China also require the country to do so. The judicial review system in China is shaped mainly by its Administrative Procedure Law (APL). The system has been functioning pretty well since the adoption of the APL in 1989. However, with the time going, some concerns and problems have been shown, the most important one of which seems to be the application scope of the law which shall be enlarged in order to better its function in supervising administrative actions. Concerning the legislation, the country lacks an effective constitutional review system at present. This is also one of the directions to which the reform shall be targeted. On international level, China has signed the ICCPR but not yet ratified it, and the country is neither a member of the Protocol to the ICCPR. This makes citizens in China have no recourse to the Human Rights Committee, an international monitor body of implementation of the Covenant, to seek remedies for violations of human rights committed by the State government. But it can be expected that China will join the system sooner or later. (Less)
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author
Li, Xiang
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
International Human Rights Law
language
English
id
1555116
date added to LUP
2010-03-08 15:22:57
date last changed
2010-03-08 15:22:57
@misc{1555116,
  abstract     = {This thesis concerns the importance of judicial review system in safeguarding human rights. It examines different review systems on international level, regional level and domestic level. In the second half of the thesis, China, as a specially targeted country, has been examined in better detail of its judicial review system. The aim of this thesis is to, through introduction of, and comparison with other systems developed in the world, examine situations and problems existing in present judicial review system in China, and try to find, at the end of the thesis, some useful solutions for China's possible further reform in related legal area, specially in its judicial review system. The reason as to why this topic is chosen mainly lies in the fact that the author has been thinking since the programme started in September 2005: What is the most important aspect in safeguarding human rights and bringing them into reality in Public International Law? Formulation of legal instruments, reform of international institutions or other? And my answer is: the implementation of International Law. The world incorporates moral values into law mainly because the values in the form of legitimacy can be realized through enforcing the law. If a law containing moral values remains on paper and symbolic, no matter how perfectly it is formulated, it is meaningless. As long as the law is enforced, the values enshrined in it can come true. The more effectively it is enforced, the better the values are realized. As part of International Law, international human rights law require states parties take all possible measures to implement the law, among those measures, an effective remedy for violation of human rights is required, and if a state fails to do so, there are remedies available on higher level in regional scope or in the spectrum of the UN. The remarkable achievements made by the European Court of Human Rights testified the significant role of judicial review in safeguarding human rights, and the development and functioning of the Human Rights Committee also proves its value. China, as a member of most international human rights instruments, under the obligation of which, is expected to build up an effective judicial review system in safeguarding people's rights. The economic development, the accession to the WTO and practical situation in China also require the country to do so. The judicial review system in China is shaped mainly by its Administrative Procedure Law (APL). The system has been functioning pretty well since the adoption of the APL in 1989. However, with the time going, some concerns and problems have been shown, the most important one of which seems to be the application scope of the law which shall be enlarged in order to better its function in supervising administrative actions. Concerning the legislation, the country lacks an effective constitutional review system at present. This is also one of the directions to which the reform shall be targeted. On international level, China has signed the ICCPR but not yet ratified it, and the country is neither a member of the Protocol to the ICCPR. This makes citizens in China have no recourse to the Human Rights Committee, an international monitor body of implementation of the Covenant, to seek remedies for violations of human rights committed by the State government. But it can be expected that China will join the system sooner or later.},
  author       = {Li, Xiang},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {Judicial Review System in Safeguarding Human Rights-From International Perspective and Domestic Perspective Especially in China},
  year         = {2006},
}