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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