E/C.12/1998/24
page 4
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 it cited,
by way of example, articles 3, 7 (a) (i), 8, 10.3, 13.2 (a), 13.3, 13.4
and 15.3. 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.