CESCR Committee 1 december 1998, The Domestic application of the Covenant

(par. 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, 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.

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 to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law’.

The International covenant on Economic, Social and Cultural Rights contains no direct counterpart to article 2 paragraph 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, paragraph 1, of the International covenant on Economic, Social and Cultural Rights 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 case, the other means used could be rendered ineffective if they are not reinforced or complemented by judicial remedies.’