Bringing the Law to Life: Judicial Operationalisation of International Human Rights Law in the Domestic Sphere

This chapter debates the role of the national courts in applying and interpreting human rights law by looking at how judges engage with this area of international human rights law. This chapter first examines the requirements under international law for States parties to implement human rights treaties and discusses the monist and dualist nature of national legal systems. However, the chapter's main feature is the author's comparative analysis of jurisprudence from the Netherlands and Australia, countries of historical and geographical significance to Indonesia that follow different legal systems (monist vs. dualist and civil vs. common law). The chapter claims that judiciaries play a key role in realising human rights domestically and provides grounds for reflection on how this may be done in Indonesia. Fraser argues that Indonesian courts are better situated to implement human rights than both their Dutch and Australian peers in the sense that there are fewer occasions requiring them to defer to parliament.