E/C.12/1998/24
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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 para. 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, 2/ in relation to
which the provision of some form of judicial remedy would seem indispensable