E/C.12/1998/24
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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
of 1969, 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. 1/ This issue is considered further by the
Committee in its General Comment No. 12 (1998). 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 Covenant contains no direct counterpart to
article 2.3 (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 2.1 of the Covenant 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.