Chapter 2 | Page 64
The provisions of the ICESCR are, however, unclear as to whether States are
required to introduce or implement domestic legal mechanisms, particularly
the incorporation of the Covenant rights to domestic law. While the language
of the Covenant does not provide evidence for an obligation to incorporate the
Covenant rights into domestic law, no such matter was considered during the
drafting of the Covenant.87
Domestic legislation of the rights in the Covenant is not mandatory under the
terms of the Covenant and its necessity is therefore a matter for the States to
determine.88 For this reason, if any existing legislation is in violation of the
obligations under the Covenant, States are required to take ‘legislative action’,
as per the reading of Article 2(1).89 The protection of these rights through
legislation provides better guarantees for victims to be able to make demands
on the State and seek remedies, and can be taken as a benchmark to measure
progressive policy action by the government.
A variety of strategies and policies needs to be adopted for realisation of ESC
rights domestically. These include the establishment of effective mechanisms
and institutions for: investigating and examining alleged infringements of ESC
rights; identifying responsibilities; publicising the results of investigations; and
offering necessary administrative, judicial and other remedies to compensate
victims and providing means of redress or remedies.90 Other appropriate State
actions include the adoption of policies, strategies and national action plans.
‘Appropriate means’ also has many dimensions:
Government policies and goals, administrative guidelines and best practices,
economic incentives and rewards, and perceptions of community standards,
as well as statutes, secondary rules and judicial and other arbitral body
determinations are all part of the panoply of “appropriate means” that are
87
Alston and Quinn, above n 1, 166.
88
As a general rule in international law, unless the treaty calls upon the states to introduce
or implement domestic legal mechanisms, the ratification of a treaty need not necessarily
entail such action by the States.
89
Alston and Quinn, above n 1, 167.
90
Ssenyonjo, above n 10, 976.
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