CESCR
General Comment No. 9
The domestic application of the Covenant
Nineteenth session 1998
E/1999/22
A. The
duty to give effect to the Covenant in the domestic legal order
1. In its general comment No. 3 (1990) on the nature of States parties’
obligations (article 2, paragraph 1, of the Covenant)[1] the Committee
addressed issues relating to the nature and scope of States parties’
obligations. The present general comment seeks to elaborate further
certain elements of the earlier statement. The central obligation
in relation to the Covenant is for States parties to give effect
to the rights recognized therein. By requiring Governments to do
so “by all appropriate means”, the Covenant adopts a broad and flexible
approach which enables the particularities of the legal and administrative
systems of each State, as well as other relevant considerations,
to be taken into account.
2. But this flexibility coexists with the obligation upon each State
party to use all the means at its disposal to give effect to the
rights recognized in the Covenant. In this respect, the fundamental
requirements of international human rights law must be borne in
mind. Thus the Covenant norms must be recognized in appropriate
ways within the domestic legal order, appropriate means of redress,
or remedies, must be available to any aggrieved individual or group,
and appropriate means of ensuring governmental accountability must
be put in place.
3. Questions relating to the domestic application of the Covenant
must be considered in the light of two principles of international
law. The first, as reflected in article 27 of the Vienna Convention
on the Law of Treaties,[2] is that “[A] party may not invoke the
provisions of its internal law as justification for its failure
to perform a treaty”. In other words, States should modify the domestic
legal order as necessary in order to give effect to their treaty
obligations. The second principle is reflected in article 8 of the
Universal Declaration of Human Rights, according to which “Everyone
has the right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by the constitution
or by law”. The International Covenant on Economic, Social and Cultural
Rights contains no direct counterpart to article 2, paragraph 3
(b), of the International Covenant on Civil and Political Rights,
which obligates States parties to, inter alia, “develop the possibilities
of judicial remedy”. Nevertheless, a State party seeking to justify
its failure to provide any domestic legal remedies for violations
of economic, social and cultural rights would need to show either
that such remedies are not “appropriate means” within the terms
of article 2, paragraph 1, of the International Covenant on Economic,
Social and Cultural Rights or that, in view of the other means used,
they are unnecessary. It will be difficult to show this and the
Committee considers that, in many cases, the other means used could
be rendered ineffective if they are not reinforced or complemented
by judicial remedies.
B. The status of the Covenant in the domestic legal order
4. In general, legally binding international human rights standards
should operate directly and immediately within the domestic legal
system of each State party, thereby enabling individuals to seek
enforcement of their rights before national courts and tribunals.
The rule requiring the exhaustion of domestic remedies reinforces
the primacy of national remedies in this respect. The existence
and further development of international procedures for the pursuit
of individual claims is important, but such procedures are ultimately
only supplementary to effective national remedies.
5. The Covenant does not stipulate the specific means by which it
is to be implemented in the national legal order. And there is no
provision obligating its comprehensive incorporation or requiring
it to be accorded any specific type of status in national law. Although
the precise method by which Covenant rights are given effect in
national law is a matter for each State party to decide, the means
used should be appropriate in the sense of producing results which
are consistent with the full discharge of its obligations by the
State party. The means chosen are also subject to review as part
of the Committee’s examination of the State party’s compliance with
its obligations under the Covenant.
6. An analysis of State practice with respect to the Covenant shows
that States have used a variety of approaches. Some States have
failed to do anything specific at all. Of those that have taken
measures, some States have transformed the Covenant into domestic
law by supplementing or amending existing legislation, without invoking
the specific terms of the Covenant. Others have adopted or incorporated
it into domestic law, so that its terms are retained intact and
given formal validity in the national legal order. This has often
been done by means of constitutional provisions according priority
to the provisions of international human rights treaties over any
inconsistent domestic laws. The approach of States to the Covenant
depends significantly upon the approach adopted to treaties in general
in the domestic legal order.
7. But whatever the preferred methodology, several principles follow
from the duty to give effect to the Covenant and must therefore
be respected. First, the means of implementation chosen must be
adequate to ensure fulfilment of the obligations under the Covenant.
The need to ensure justiciability (see paragraph 10 below) is relevant
when determining the best way to give domestic legal effect to the
Covenant rights. Second, account should be taken of the means which
have proved to be most effective in the country concerned in ensuring
the protection of other human rights. Where the means used to give
effect to the Covenant on Economic, Social and Cultural Rights differ
significantly from those used in relation to other human rights
treaties, there should be a compelling justification for this, taking
account of the fact that the formulations used in the Covenant are,
to a considerable extent, comparable to those used in treaties dealing
with civil and political rights.
8. Third, while the Covenant does not formally oblige States to
incorporate its provisions in domestic law, such an approach is
desirable. Direct incorporation avoids problems that might arise
in the translation of treaty obligations into national law, and
provides a basis for the direct invocation of the Covenant rights
by individuals in national courts. For these reasons, the Committee
strongly encourages formal adoption or incorporation of the Covenant
in national law.
C. The role of legal remedies
Legal or judicial remedies?
9. The right to an effective remedy need not be interpreted as always
requiring a judicial remedy. Administrative remedies will, in many
cases, be adequate and those living within the jurisdiction of a
State party have a legitimate expectation, based on the principle
of good faith, that all administrative authorities will take account
of the requirements of the Covenant in their decision-making. Any
such administrative remedies should be accessible, affordable, timely
and effective. An ultimate right of judicial appeal from administrative
procedures of this type would also often be appropriate. By the
same token, there are some obligations, such as (but by no means
limited to) those concerning non-discrimination,[3] in relation
to which the provision of some form of judicial remedy would seem
indispensable in order to satisfy the requirements of the Covenant.
In other words, whenever a Covenant right cannot be made fully effective
without some role for the judiciary, judicial remedies are necessary.
Justiciability
10. In relation to civil and political rights, it is generally taken
for granted that judicial remedies for violations are essential.
Regrettably, the contrary assumption is too often made in relation
to economic, social and cultural rights. This discrepancy is not
warranted either by the nature of the rights or by the relevant
Covenant provisions. The Committee has already made clear that it
considers many of the provisions in the Covenant to be capable of
immediate implementation. Thus, in general comment No. 3 (1990)
it cited, by way of example, articles 3; 7, paragraph (a) (i); 8;
10, paragraph 3; 13, paragraph 2 (a); 13, paragraph 3; 13, paragraph
4; and 15, paragraph 3. It is important in this regard to distinguish
between justiciability (which refers to those matters which are
appropriately resolved by the courts) and norms which are self-executing
(capable of being applied by courts without further elaboration).
While the general approach of each legal system needs to be taken
into account, there is no Covenant right which could not, in the
great majority of systems, be considered to possess at least some
significant justiciable dimensions. It is sometimes suggested that
matters involving the allocation of resources should be left to
the political authorities rather than the courts. While the respective
competences of the various branches of government must be respected,
it is appropriate to acknowledge that courts are generally already
involved in a considerable range of matters which have important
resource implications. The adoption of a rigid classification of
economic, social and cultural rights which puts them, by definition,
beyond the reach of the courts would thus be arbitrary and incompatible
with the principle that the two sets of human rights are indivisible
and interdependent. It would also drastically curtail the capacity
of the courts to protect the rights of the most vulnerable and disadvantaged
groups in society.
Self-executing
11. The Covenant does not negate the possibility that the rights
it contains may be considered self-executing in systems where that
option is provided for. Indeed, when it was being drafted, attempts
to include a specific provision in the Covenant to the effect that
it be considered “non-self-executing” were strongly rejected. In
most States, the determination of whether or not a treaty provision
is self-executing will be a matter for the courts, not the executive
or the legislature. In order to perform that function effectively,
the relevant courts and tribunals must be made aware of the nature
and implications of the Covenant and of the important role of judicial
remedies in its implementation. Thus, for example, when Governments
are involved in court proceedings, they should promote interpretations
of domestic laws which give effect to their Covenant obligations.
Similarly, judicial training should take full account of the justiciability
of the Covenant. It is especially important to avoid any a priori
assumption that the norms should be considered to be non-self-executing.
In fact, many of them are stated in terms which are at least as
clear and specific as those in other human rights treaties, the
provisions of which are regularly deemed by courts to be self-executing.
D. The treatment of the Covenant in domestic courts
12. In the Committee’s guidelines for States’ reports, States are
requested to provide information as to whether the provisions of
the Covenant “can be invoked before, and directly enforced by, the
Courts, other tribunals or administrative authorities”.[4] Some
States have provided such information, but greater importance should
be attached to this element in future reports. In particular, the
Committee requests that States parties provide details of any significant
jurisprudence from their domestic courts that makes use of the provisions
of the Covenant.
13. On the basis of available information, it is clear that State
practice is mixed. The Committee notes that some courts have applied
the provisions of the Covenant either directly or as interpretative
standards. Other courts are willing to acknowledge, in principle,
the relevance of the Covenant for interpreting domestic law, but
in practice, the impact of the Covenant on the reasoning or outcome
of cases is very limited. Still other courts have refused to give
any degree of legal effect to the Covenant in cases in which individuals
have sought to rely on it. There remains extensive scope for the
courts in most countries to place greater reliance upon the Covenant.
14. Within the limits of the appropriate exercise of their functions
of judicial review, courts should take account of Covenant rights
where this is necessary to ensure that the State’s conduct is consistent
with its obligations under the Covenant. Neglect by the courts of
this responsibility is incompatible with the principle of the rule
of law, which must always be taken to include respect for international
human rights obligations.
15. It is generally accepted that domestic law should be interpreted
as far as possible in a way which conforms to a State’s international
legal obligations. Thus, when a domestic decision maker is faced
with a choice between an interpretation of domestic law that would
place the State in breach of the Covenant and one that would enable
the State to comply with the Covenant, international law requires
the choice of the latter. Guarantees of equality and non-discrimination
should be interpreted, to the greatest extent possible, in ways
which facilitate the full protection of economic, social and cultural
rights.
Notes
[1] Ibid.
[2] E/1991/23, annex III.
[3] United Nations, Treaty Series, vol. 1155, p. 331.
[4] Pursuant to article 2, paragraph 2, of the Covenant, States
“undertake to guarantee” that the rights therein are exercised “without
discrimination of any kind”.
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