other fundamental rights “on the pretext that the present Covenant does not recognize such
rights or that it recognizes them to a lesser extent.”
3.4 Means of Implementation
Under ICESCR, the means by which the full realization of rights is achieved is open and
broad. Nonetheless, despite this wide scope, the choice of means of implementation is not
entirely free of constraints. ICESCR specifies that:
Although the precise method by which Covenant rights are given effect in national
law is a matter for each State party to decide, the means used should be appropriate
in the sense of producing results which are consistent with the full discharge of its
obligations by the State party. The means chosen are also subject to review as part of
the Committee’s examination of the State party’s compliance with its obligations
under the Covenant.38
The CESCR has stated that State Parties must respect the following three principles in
deciding on appropriate means of implementation:
•
•
•
the means of implementation must be adequate to ensure fulfilment of the
obligations under the Covenant;
the means of implementation should not differ from those used in relation to other
human rights; and
the formal incorporation of the ICESCR into national law is not obligatory, but is
desirable as it provides a basis for the direct invocation of the ICESCR by individuals
in national courts.39
Means of Implementation
• Legislation
• Judicial or other effective
remedies
• Other administrative,
financial, educational and
social measures
While the CESCR has emphasized that legislation can
be indispensable in the implementation of a number of
rights, it has also maintained that State Parties should
make use of any other means of implementation
appropriate under the circumstances with respect to
each right.40 As such, available means may include
administrative, financial, educational and social
measures.41
To this end, the CESCR has highlighted the importance of providing judicial or other
effective remedies for violations of the rights contained in the Covenant, expressing the view
that every right included in the Covenant possesses “some significant justiciable
dimension.”42 It has therefore rejected the idea that economic, social and cultural rights
could be defined as essentially non-justiciable, as this would go against the principles of the
indivisibility and interdependence of human rights and prevent courts from effectively
protecting the rights of the most vulnerable and disadvantaged groups in society.43 In
particular, the CESCR has pointed to a number of provisions in the Covenant which it
deems to be entirely justiciable: Articles 3, 7(a)(i), 8, 10(3), 13(2)(a), (3) and (4), and 15(3).44
The justiciability of these provisions arises from their expression in compulsory terms as well
as the fact that many of them are similar in nature to civil and political rights, relating to the
18
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