1. Human rights treaties are characterised more clearly as creating a legal order in which the States parties make binding unilateral commitments to protect the basic rights of individuals within their jurisdiction. As was noted by the European Court of Human Rights the European Convention (as a human rights treaty):

‘… comprises more man mere reciprocal engagements between contracting States. It creates, over and above a network of mutual bilateral undertakings, objective obligations which … benefit from a “collective enforcement”.’

Ireland v. United Kingdom, ECHR, Series A, Vol. 25, judgment of 18 January 1978.Google Scholar

2. Brudner, A., ‘The Domestic Enforcement of International Covenants on Human Rights: A Theoretical Framework’, 35 Univ. Toronto LJ (1985) p. 219 at p. 220CrossRefGoogle Scholar; Opsahl, T., ‘Human Rights Today: International Obligations and National Implementation’, 23 Scand. Stud. L. (1979) p. 149, at p. 153Google Scholar; Leary, V., International Labour Conventions and National Law (1982) p. 36.Google Scholar

3. As Tomuschat has commented:

‘…the standards elaborated at the international level should be conveyed without any substantial loss to the national level where human beings are in need of the kind of protection which the relevant international instruments purport to provide to them. Failing reliable channels and devices for such a transmission, human rights risk being reduced to purely political rhetoric’

Tomuschat, C., ‘National Implementation of International Standards on Human Rights’, Can. HRY (1984/5) p. 31 at p. 32.Google Scholar

4. UN Doc. E/C12/1993/3.

5. See, e.g., Cranston, M., ‘Human Rights Real and Supposed’, in Raphael, D., ed., Political Theory and the Rights of Man (1967) p. 43.Google Scholar

6. As a matter of example, the Finnish representative, in presenting his country's report to the Committee commented that economic, social and cultural rights had rarely been invoked before domestic courts ‘because few of those rights could be enforced by means of individual court cases’. Ketokoski (Finland), E/C.12/1991/SR.12, at p. 9, para. 39.

7. For some of the most influential works see Vierdag, E., ‘The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights’, 9 NYIL (1978) p. 69CrossRefGoogle Scholar; Bossuyt, M., ‘La Distinction Juridique entre les Droits Civil et Politique et les droits Economiques, Sociaux et Culturels’, 8 HRLJ (1975) p. 783Google Scholar; Van Hoof, G., ‘The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views’, in Alston, P. and Tomasevski, K., eds., The Right to Food (1984) p. 97.Google Scholar

8. See Simma, B., ‘The Implementation of the International Covenant on Economic, Social and Cultural Rights’, in Matscher, F., ed., The Implementation of Economic and Social Rights (1991).Google Scholar

9. The supervisionprocess is as follows: States are required to submit reports upon the current domestic situation with respect to the economic, social and cultural rights in the Covenant once every five years. This report is scrutinised by the UN Committee on Economic, Social and Cultural Rights in a meeting to which a representative of the State concerned is invited to attend. The Committee attempts to enter into a mutually beneficial ‘constructive dialogue’ with the State representative which generally involves the representative being asked to respond to various questions of concern to the Committee. At the end of the discussion the Committee will adopt a set of ‘concluding observations’ reflecting its appreciation of the degree to which the State is successfully implementing its obligations under the Covenant. For discussions of the work of the Committee, see Alston, P. and Simma, B., ‘First Session of the UN Committee on Economic, Social and Cultural Rights’, 81 AJIL (1987) p. 747CrossRefGoogle Scholar; Alston, P. and Simma, B., ‘Second Session of the UN Committee on Economic, Social and Cultural Rights’, 82 AJIL (1987) p. 603CrossRefGoogle Scholar; Alston, P., ‘The Committee on Economic, Social and Cultural Rights’, in Alston, P., ed., The United Nations and Human Rights: A Critical Appraisal (1992) p. 473Google Scholar; Leckie, S., ‘An Overview and Appraisal of the Fifth Session of the UN Committee on Economic, Social and Cultural Rights’, 13 HRQ (1991) p. 539.CrossRefGoogle Scholar

10. See below, text accompanying nn. 160–161.

11. For a distinction between these concepts see, de Visscher, P., ‘Les Tendances Internationa-les des Constitutions Modernes’, 80 Hague Recueil (1952) pp. 511, 558–559. He states:Google Scholar

‘Le traité unefois incorporé dans I 'ordre juridique interne n ’en est pas sur autant nécessairement applicable par les tribunaux dans les litiges particuliers… La question de I'introduction du traite dans I ‘ordre juridique interne et celle du caractère “self executing” du traite sont, à notre sens, des questions distinctes que trop d'auteurs confondent.’

Iwasawa similarly distinguishes between the term ‘domestic validity’ and ‘domestic applicability’. The former he defines as relating to provisions which have ‘the force of law within the domestic sphere’, the latter to provisions that are ‘capable of being applied without the need for further measures’. Iwasawa, Y., ‘The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis’, 26 VJIL (1986) p. 627, at pp. 632–633. The main benefit of such an approach is that it avoids the necessity of applying treaties in an ‘all or nothing’ manner in which the non-self- executing provisions are deemed to form no part of domestic law. Thus non-self-executing treaties may nevertheless have domestic validity insofar as they are relevant legal considerations in the inter-pretation and application of domestic norms. There are two problems with this approach. First, the use of human rights treaties as interpretative aids in die US is not necessarily a function of the existence of an international obligation. See below, text accompanying notes 178–179. Secondly, the use of treaty provisions in such a manner also takes place in die UK which would force one into the strange conclusion that unincorporated treaties were ‘domestically valid’. Despite these concerns the distinction will be utilised here for die purposes of clarity.Google Scholar

12. See Art. 26, Vienna Convention on the Law of Treaties, 1155 UNTS (1969) p. 331. See also, Exchange of Greek and Turkish Populations Case (Advisory Opinion), PCIJ Rep. Series B, No. 10 (1925) pp. 20–21.Google Scholar

13. In the terms of the ILC an ‘obligation of result’ requires a State to achieve a particular result through a course of conduct the form of which is left to the State‘s discretion. It is to be contrasted wim an ‘obligation of conduct’ which requires die State concerned to undertake a specific course of action. See Report of the International Law Commission, ILC Yearbook 1977 vol. 2 pp. 11–30.Google Scholar

14. van Dijk, P., ‘Domestic Status of Human-Rights Treaties and the Attitude of the Judiciary - The Dutch Case’, in Nowak, M., Steurerand, D.Tretter, H., eds., Progress in the Spirit of Human Rights (1988) p. 634Google Scholar; Schachter, O., “The Obligation to Implement the Covenant in Domestic Law’, in Henkin, L., ed., The International Bill of Rights (1982) p. 311.Google Scholar

15. Art. 27, Vienna Convention.

16. Holloway, K., Modern Trends in Treaty Law (1967) p. 248.Google Scholar

17. Van Dijk, , loc. cit. n. 14, at p. 634.Google Scholar

18. Sørensen, M., ‘Obligations of a State Party to a Treaty as Regards its Municipal Law’, in Robertson, A., ed., Human Rights in National and International Law (1968) p. 11 at p. 14.Google Scholar

19. On ‘monism’ and ‘dualism’ in international law see Brownlie, I., Principles of Public International Law, 4th edn. (1990) pp. 32–34.Google Scholar

20. It has to be noted, however, that even in cases of ‘adoption’, certain treaties may nevertheless require legislative implementation to be put into effect. These are commonly called ‘non-self- executing’ treaties.

21. See de la Rochère, J., ‘France’, in Jacobs, F. and Roberts, S., eds., The Effect of Treaties in Domestic Law (1987) p. 39.Google Scholar

22. See Polakiewicz, J. and Jacob-Foltzer, V., ‘The European Human Rights Convention in Domestic Law: The Impact of Strasbourg Case-Law in States Where Direct Effect is Given to the Convention’, 12 HRLJ (1991) p. 125, at p. 132.Google Scholar

23. Maresceau, M., ‘Belgium’, in Jacobs, and Roberts, , eds., op. cit. n. 21, p. 1.Google Scholar

24. See generally, Schermers, H.G., ‘Netherlands’, in Roberts, and Jacobs, , eds., op. cit. n. 21, p. 109Google Scholar; Van Dijk, , loc. cit. n. 14, at p. 631Google Scholar; Erades, L. and Gould, W., International Law and Municipal Law in the Netherlands and in the United States (1961) p. 297.Google Scholar

25. See generally, Jackson, J., ‘United States of America’, in Jacobs, and Roberts, , eds., op. cit. n. 21, p. 141Google Scholar; Iwasawa, loc. cit. n. 11; Burke, K. et al. , ‘Application of International Human Rights Law in State and Federal Courts’, 18 Texas ILJ (1983) p. 291Google Scholar; Erades, and Gould, , op. cit. n. 24, at p. 297Google Scholar; Leary, , op. cit. n. 2, at p. 55.Google Scholar

26. Frowein, J., ‘Federal Republic of Germany’, in Jacobs, and Roberts, , eds., op. cit. n. 21 p. 63Google Scholar

27. Gaja, G., ‘Italy’, in Jacobs, and Roberts, , eds., op. cit. n. 21, p. 87Google Scholar, at p. 103; La Pergola, A. and del Duce, P., ‘Community Law, International Law and the Italian Constitution’, 79 AJIL (1985) p. 598.Google Scholar

28. Leary, , op. cit. n. 2, at p. 37.Google Scholar It should be noted that such States are principally ‘dualist’ in their approach, yet operate very similarly to States with ‘monist’ systems. See Morgenstern, F., ‘Judicial Practice and the Supremacy of International Law’, 27 BYIL (1950) p. 42.Google Scholar

29. Van Dijk, , loc. cit. n. 14, at p. 635Google Scholar; Frowein, , loc. cit. n. 26, at p. 65. Seidl Hohenveldern notes, however, that the approval of a treaty before ratification cannot give the treaty domestic validity as ‘that treaty obviously cannot produce effects in the municipal sphere before it becomes valid internationally’. I. Seidl Hohenveldern, ‘Transformation or Adoption of International Law into Municipal Law’, 12 ICLQ (1963) p. 88, at p. 105.Google Scholar

30. In the UK see Garland v. British Rail Engineering Ltd. [1983] 2 AC 751, at 771, Diplock LJ: ‘The words of a statute passed after the treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom are to be construed, if they are capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it’. The Courts will thus presume that Parliament intended to legislate in conformity with the UK's international obligations. However, they will only have recourse to the text of the treaty concerned, in cases where domestic legislation is ambiguous. See R v. Sec. of State for the Home Department, ex Pane Brind, [1991] 1 AC 696, at 747–748 (Lord Bridge).Google Scholar

31. See, e.g., The UK Merchant Shipping (International Labour Conventions) Act, 1925, 15 & 16 Geo. 5 c. 57, which reproduces two International Labour Conventions in its Schedules. With respect to the Geneva Conventions of 1949, see Hampson, F., ‘The Geneva Conventions and the Detention of Civilians and Alleged Prisoners of War’, PL (1991) p. 507, at pp. 517–519Google Scholar

32. See, e.g., The UK Maritime Conventions Act, 1911,1 & 2 Geo. 5 c. 57, which was entitled ‘An Act to amend the law relating to Merchant Shipping with a view to enabling certain Conventions to be carried into effect’.

33. Mann, F., Foreign Affairs in English Courts (1986)Google Scholar; Higgins, R., ‘Untied kingdom’, in Jacobs, and Roberts, , eds., op. cit. n. 21, p. 123Google Scholar; Roodt, C., ‘National Law and Treaties: An Overview’, 13 SAYIL (1987/1988) p. 72, at p. 82.Google Scholar

34. Gulmann, C., ‘Denmark’, in Jacobs, and Roberts, , eds., op. cit. n. 21, p. 29.Google Scholar

35. Jacomy-Millette, A., Treaty Law in Canada (1975) at p. 196.Google Scholar

36. The major concerns will be the language and form of the agreement, and the coverage of existing domestic law.

37. See, e.g., Jacobs, F., ‘Introduction’, in Jacobs, and Roberts, , eds., op. cit. n. 21, at pp. xxivxxvi.Google Scholar

38. Riesenfeld, S., ‘The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at Any Price?’, 74 AJIL (1980) p. 892, at p. 901, fn. 46.Google Scholar

39. See Scheinin, M., ‘The Status of the Covenant on Civil and Political Rights in Finland’, in L. Rehof and C. Gulmann, eds., Human Rights in Domestic Law and Development Assistance Policies of the Nordic Countries (1980) p. 195.Google Scholar

40. This might have significance with respect to human rights treaties in that the supervisory bodies may seek to develop the substantive content of the treaties themselves.

41. See the Van Gend En Loos Case (26/62), [1963] ECR 1 at 12.Google Scholar

42. Pescatore, P., ‘Conclusion’, in Jacobs, and Roberts, , eds., op. cit. n. 21, p. 282.Google Scholar

43. Winter, J., ‘Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community Law’, 9 CMLR (1972) p. 425Google Scholar, at p. 431. Jackson, J., ‘Status of Treaties in Domestic Legal Systems: A Policy Analysis’, 86 AJIL (1992) p. 310, at p. 322.Google Scholar

44. Brudner, , loc. cit. n. 2, at p. 223. States may repair such incompatibility through the enactment of further amending legislation. A case in point would seem to be the UK Contempt of Court Act 1981, which was introduced, in part, as a response to the European Court of Human Rights’ finding in the Sunday Times Case, ECHR, Series A, Vol. 30, Judgment of 26 April 1979 (1979–80) 2 EHRR 245. It might be noted, however, that subsequent changes in the law do nothing to remedy the initial violation.Google Scholar

45. Leary, , op. cit. n. 2, at p. 3.Google Scholar

46. Art. 55 of the French Constitution reads: ‘Treaties and agreements duly ratified and approved shall, upon their publication, have an authority superior to that of laws …’ For other examples see Cassese, A., ‘Modern Constitutions and International Law’, 192 Hague Recueil (1985) p. 335, at pp. 401–408.Google Scholar

47. See Jhabvala, F., ‘Domestic Implementation of the Covenant on Civil and Political Rights’, 32 NILR (1985) p. 461Google Scholar, at pp. 463–464; Schachter, , loc. cit. n. 14, at pp. 313–314.Google Scholar

47. Schachter, , loc. cit. n. 14, at p. 314.Google Scholar

49. See, e.g., Schachter, , loc. cit. n. 14, at p. 313Google Scholar; Jhabvala, , loc. cit. n. 47, at p. 463Google Scholar; Tomuschat, , loc. cit. n. 3, at p. 39Google Scholar; Graefrath, B., ‘How Different Countries Implement International Standards on Human Rights’, Can. HRY (1984/1985) p. 3, at p. 8. The position seems to be the same with respect to the European Convention on Human Rights. Thus in the Swedish Engine Drivers Case, ECHR Series A, Vol. 20, Judgment of 6 February 1976 (1979–80) 1 EHRR 637, the Court stated:Google Scholar

‘…neither Article 13 nor the Convention in general lays down for the Contracting States any given manner for ensuring within their internal law the effective implementation of any of the provisions of the Convention’.

50. Although questions as to the position of treaties in domestic law are contained within the consolidated reporting guidelines, the response of States parties has been poor. In the majority of cases, States have failed to provide the information necessary to build up a coherent picture of the legal position

51. In Sweden, the courts or other judicial authorities can only apply international instruments if they have been incorporated into Swedish law by an act of Parliament or, in rare cases, by a special law. However, the normal method is to amend or rectify the legislation in force to ensure that it is in conformity with the instrument in question. The ICESCR had not been incorporated as such, and on ratification, the relevant legislation had been reviewed and no major adjustments had been deemed necessary since the provisions of the Covenant were already basically in conformity with Swedish legislation. Danielsson (Sweden), E/C.12/1988/SR.10, at p. 2, para. 4.

52. See de Montigny Marchand (Canada), E/C. 12/1989/SR.8, at p. 2, para. 2.

53. The UK representative commented before the Committee:

‘…it was not the practice of the United Kingdom to give the force of law to the provisions of international treaties to which it was a party. Its approach was rather to ensure that domestic legislation was consistent with those treaties and would enable it to perform the obligations which it had undertaken by signing them and, if necessary, to adopt legislation to that effect’. Britton (UK), E/C.12/1989/SR.17, at p. 5, para. 17.

54. See Wahidi, (Afghanistan), E/C.12/1991/SR.4, at p. 4, para. 21.Google Scholar

55. See Segura, Rhenan (Costa Rica), E/C.12/1990/SR.38, at p. 15, para. 85.Google Scholar

56. See Apunte, (Ecuador), E/C.12/1990/SR.39, at p. 2, para. 6.Google Scholar

57. See Weitzel, (Luxembourg), E/C.12/1990/SR.33, at p. 8, para. 29.Google Scholar

58. See Regazzoli, (Argentina), E/C.12/1990/SR.18, at p. 4, para. 14.Google Scholar

59. See Posada, Rivas (Colombia), E/C.12/1990/SR.12, at p. 9, para. 62.Google Scholar

60. See Martinez, Gonzalez (Mexico), E/C.12/1990/SR.6, at p. 4, para. 15.Google Scholar

61. See Markides, (Cyprus), E/C.12/1990/SR.2, at p. 3, para. 9.Google Scholar

62. See Ngimbi, (Zaire), E/C.12/1988/SR.19, at p. 2, para. 6.Google Scholar

63. Tomuschat, , loc. cit. n. 3, at p. 40.Google Scholar

64. See below text accompanying nn. 148–160.

65. But see Vita, Alvarez, E/C.12/1990/SR.35, at p. 11, para. 43.Google Scholar

66. Texier, E/C.12/1988/SR.12, at p. 9, para. 45.

67. Alston, E/C.12/1988/SR.13, at p. 5, para. 19.

68. Van Dijk, , loc. cit. n. 14, at pp. 631–632.Google Scholar See also Leary, , op. cit. n. 2, at p. 37.Google Scholar

69. Bossuyt, M., ‘The Direct Applicability of International Instruments on Human Rights’, 15 RBDI (1980) p. 317.Google Scholar

70. Leary, , op. cit. n. 2, at p. 53. Evans similarly defines self-executing treaties as being:Google Scholar

‘… those which by their own terms can be carried into effect by administrative authorities or which create a rule for the courts, or, more broadly, those which can be implemented by the executive branch itself without recourse to congressional action.’ Evans, A., ‘Self-Executing Treaties in the United States of America’, 30 BYIL (1953) p. 178, at p. 193.Google Scholar

71. Some commentators have defined self-executing treaties more narrowly as those which involve the rights and duties of the individual. See Riesenfeld, S., ‘The Doctrine of Self-Executing Treaties and GATT: A Notable German Judgement’, 65 AJIL (1971) p. 548, at p. 550.CrossRefGoogle Scholar Iwasawa points out that judicial practice within the US is inconsistent on this point. He notes, however, that on a number of occasions courts have found provisions to be self-executing despite not directly affecting the rights and duties of the individual. In Cook v. US, 288 U.S. 102 (1933), for example, liquor treaties were deemed to be self-executing such that they allowed the authorities to board foreign vessels outside the limits of the territorial sea.

72. Winter, , loc. cit. n. 43, at p. 425;Google ScholarLasok, D. and Bridge, J., Law and Institutions of the European Communities, 4th edn. (1987) pp. 301–302.Google Scholar

73. Jackson, , loc. cit. n. 43, at pp. 317–318.Google Scholar Jackson identifies three sub-categories of self- executing provisions. First, those that are addressed to administrative authorities, not individuals, but yet are capable of being implemented without recourse to legislation. Secondly, those that are relevant to relations between public authorities and private individuals which might be said to have ‘ vertical effect’. Finally, those that are relevant to relations between individuals and other individuals or private entities which, in other words, have ‘horizontal effect’. Only in the latter two cases will the individual be able to rely upon the treaty provisions as a cause of action before domestic courts.

74. Bossuyt, however, defines a self-executing provision as being strictly one which has been ‘adopted’ (aldiough he does not define that term closely) and is ‘self-sufficient’. Bossuyt, , loc. cit. n. 69, at p. 319.Google Scholar

75. See Iwasawa, , loc. cit. n. 11, at p. 640;Google ScholarTomuschat, , loc. cit. n. 3, at p. 42.Google Scholar Clearly this is not the case with respect to treaties that have been ‘transformed’.

76. E.g., Finland, see Scheinin, loc. cit. n. 39.

77. Alkema, E., ‘The Application of Internationally Guaranteed Human Rights in the Municipal Order’, in Kalshoven, F., Kuyper, P. and Lammers, J., eds., Essays on the Development of the International Legal Order (1980) p. 181, at p. 196.Google Scholar

78. See Myjer, E., ‘Dutch Interpretation of the European Convention: A Double System?’, in Matscher, F. and Petzold, H., eds., Protecting Human Rights in the European Dimension (1988) p. 421, at pp. 428–429.Google Scholar

79. Leary, , op. cit. n. 2, at p. 103.Google Scholar It is also relevant to note that treaties generally have more than one official language which might have considerable bearing upon the interpretation adopted.

80. See Jacobs, F., ‘The Convention and the English Judge’, in Matscher, F. and Petzold, H., eds., Protecting Human Rights in the European Dimension (1988) p. 273, at p. 279.Google Scholar Such arguments are similar to those put forward by opponents to a Bill of Rights in the UK, see generally, Zander, M., A Bill of Rights?, 3rd edn. (1985); Wallington, P. and McBride, J., Civil Liberties and a Bill of Rights (1976).Google Scholar

81. Alkema, , loc. cit. n. 77, at p. 188.Google Scholar

82. See Tomuschat, , loc. cit. n. 3, at p. 48.Google Scholar

83. Jacobs, , loc. cit. n. 80, at p. 279.Google Scholar

84. Reporting Guidelines, ESCOR, Supp. (No. 3), Annex IV, at 89, UN Doc. E/C. 12/1990/8 (1991).

85. See, e.g., Strassera (Argentina), E/C.12/1990/SR.19, at p. 3, para. 9; Gonzalez Martinez (Mexico), E/C.12/1990/SR.9, at p. 5, para. 14.

86. See Walkate (Netherlands), E/C.12/1989/SR.14, at p. 3, para. 8.

87. See Weitzel (Luxembourg), E/C.12/1990/SR.33, at p. 8, para. 29.

88. See Weitzel (Luxembourg), E/C.12/1990/SR.35, at p. 2, para. 4.

89. Ibid., at p. 11, para. 44.

90. See Weitzel (Luxembourg), E/C.12/1990/SR.33, at p. 8, para. 29.

91. See Simma, E/C.12/1990/SR.34, at p. 9, para. 64.

92. See Mratchkov, E/C.12/1990/SR.34, at p. 7, para. 46; Simma, E/C.12/1990/SR.34, at p. 9, para. 64; and E/C.12/1990/SR.36, at p. 9, para. 37.

93. Art. 3 reads: ‘The States parties to me present Covenant undertake to ensure the equal right of men and women to the enjoymentof all economic, social and cultural rights set forth in the present Covenant.’

Art. 7(a)(i) reads: ‘The States parties to the present Covenant recognise the right of everyone to the enjoyment of … equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work.’

Art. 8 reads, inter alia: ‘The States parties to the present Covenant undertake to ensure … the right of everyone to form trade unions and join the trade union of his choice …’

Art. 10(3) reads: ‘Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.’

Art. 13(2)(a) reads: ‘Primary education shall be compulsory and available free to all.’

Art. 13(3) reads: ‘The States parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.’

Art. 13(4) reads: ‘No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph 1 of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.’

Art. 15(3) reads: ‘The States parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.’

94. General Comment No. 3, E/1991/23, Annex III, at p. 84, para. 5, UN ESCOR, Supp. (No. 3)(1991).

95. In the exceptional case of the European Communities the direct effect of provisions is provided by the treaty itself. Moreover, the ECJ itself is competent to decide whether a provision is directly applicable or not through its preliminary ruling procedure under Art. 177 of the EEC Treaty: 298 UNTS 150. Human rights treaty bodies do not have this power to make preliminary rulings and therefore cannot intervene in the process. With regard to the ECHR see Bossuyt, , loc. cit. n. 69, at pp. 321–322.Google Scholar

96. As one commentator stated:

‘The definition of self-executing treaties, which is essentially a problem of the enforcement of treaties, is a matter to be determined by the municipal law of a given state, interpreted with due consideration of the constitutional history of the State, the organisation of its government, and, indeed, of the political currents of a given period’.

Evans, , loc. cit. n. 70, at p. 193.Google Scholar See also Winter, , loc. cit. n. 43, at p. 428Google Scholar; Iwasawa, , loc. cit. n. 11, at p. 650;Google ScholarLeary, , op. cit. n. 2, at p. 39.Google Scholar

97. Tomuschat comments with regard to the ICCPR:

‘Since the Human Rights Committee, the body primarily entrusted with responsibility for ensuring compliance with the CCPR, sees no obstacle against inferring directly enforceable obligations from the CCPR, national authorities would lack any justification for adopting a more reluctant attitude.’ Tomuschat, , loc. cit. n. 3, at p. 42. Such arguments would apply equally to the Committee on Economic, Social and Cultural Rights.Google Scholar

98. The concept of the self-executing and non-self-executing treaty was first developed in the US in Foster and Elam v. Neilson, 27 US (2 Pet.) 253 (1829). Since then, the US has developed a considerable body of jurisprudence. Similarly, the notion of direct effect has been a key concept in the evolution of the EEC.

99. Supreme Court of California, 38 Cal. 2d 718, 242 P.2d 617, (1952).

100. Ibid., at 620. This is also the case in Belgium. There, in Thonon v. Belgian State [Cass. April 21,1983,1985 RCJB 22], the Belgian Court of Cassation referred, inter alia, to the intentions of die contracting parties as a determinant of the treaty's direct effect. Cited in Maresceau, , loc. cit. n. 23, at p. 16.Google Scholar

101. One commentator, at least, considers mat States were not concerned about the domestic application of the ICESCR. See Iwasawa, , loc. cit. n. 11, at p. 654.Google Scholar

102. See Riesenfeld, , loc. cit. n. 71, at p. 550.Google Scholar

103. See, e.g., Frovlova v. USSR, 761 F.2d, 370 (7th Cir. 1985).

104. Cf., Iwasawa, , loc. cit. n. 11, at p. 655.Google Scholar

105. Supreme Court, 30 May 1986, RvdW (1986) No. 120, in 18 NYIL (1987) p. 389.Google Scholar

106. NYIL, ibid., at p. 392.

107. The State of the Netherlands v. L.S.V.B. [The National Union of Students]’, Supreme Court, 14 April 1989, AB (1989) 207 in 21 NYIL (1990) p. 369. See also Heringa, A., ‘Social Rights in the Dutch Legal Order’, Working Paper (1991) p. 4.Google Scholar

108. See generally, Iwasawa, , loc. cit. n. 11, at pp. 666–669.Google Scholar With respect to a US Department of State proposal that if the Covenants were to be ratified they should be said to be non-self-executing, see Craig, M., ‘The International Covenant on Civil and Political Rights and US Law: Department of State Proposals for Preserving the Status Quo’, 19 ICLQ (1978) p. 845.Google Scholar

109. See supra, text accompanying nn. 70–74.

110. Evans, , loc. cit. n. 70, at p. 186. In the case of Warren v. US, 340 US, 523 at 526 (1951), the Supreme Court held that Art. 2(2) ILO Convention No. 55 was directly applicable because the general maritime law already recognized the exceptions allowed under the treaty.Google Scholar

111. See Tel Oren v.Libyan Arab Republic, 517 F. Supp.542(DDC 1981). Tomuschat argues that the reference to ‘legislation’ in Art. 2(2) ICCPR was intended ‘to emphasise that States should play an active role in ensuring the relevant rights, explicitly discarding a naive belief that the CCPR amounted to a self-executing treaty’. Tomuschat, , loc. cit. n. 3, at p. 42.Google Scholar

112. Iwasawa, , loc. cit. n. 11, at p. 660.Google Scholar

113. This would apply in particular to the UK, where treaty provisions are generally ‘transformed’ into domestic law.

114. Cf., Craig, , loc. cit. n. 108, at p. 861.Google Scholar

115. General Comment No. 3, supra, n. 94, at p. 84.

116. It was recognised by the Dutch Supreme Court that the wording of Art. 2(1) did not automatically imply that the substantive provisions were not directly applicable, Hoogenraad, D.v. Organisation for Pure Research in the Netherlands, Supreme Court, 20 April 1990, RvdW (1990) No. 88, cited in 22 NYIL (1991) p. 376.Google Scholar

117. Iwasawa, , loc. cit. n. 11, at p. 662. See below, text accompanying nn. 118–132.Google Scholar

118. Judge Gibson stated that the provisions of the Charter ‘lack the mandatory quality and definiteness which would indicate an intent to create justiciable rights in private persons immediately upon ratification’. Sei Fujii, supra, n. 99, at pp. 621–622.

119. Supra, n. 103, at p. 74.

120. See Banque de Credit Internationale v. Conseil D'Etat du Canton de Genève, Chambre de Droit Administratis 13 October 1972, ATF 98 I b 385. Cited (and translated) in Leary, op. cit. n. 2, at p. 68. There the court stated that the direct effect would be given if the treaty provision ‘is sufficiently precise to be applied as such in a particular case and to provide the basis for a concrete decision’. The court went on to comment that ‘this is not the case with a treaty provision which announces a programme or lays down general principles which should guide the legislation of contracting states’.

121. See Leary, op. cit. n. 2, atp. 70. In re Laglietti, 69 Rivista di Diritto Internationale (1986) p. 143, at p. 149, the Court of Cassation stated:

‘…the norms of the European Convention on Human Rights – apart obviously from those provisions the content of which, after the use of the habitual methods of interpretation, is to be considered so general that it does not express sufficiently specific rules – are directly applicable in Italy.’

Cited (and translated) in Gaja, loc. cit. n. 27, at p. 104.

122. See Verhoeven, J., ‘Traités-ApplicabilteDirecté’, 24 RBDI (1991) p. 306.Google Scholar

123. In The Netherlands v. L.S. V.B., the court rejected the claim that Art. 2(1) ICESCR had direct effect, inter alia, because it was too general (by the fact it covered all the rights granted under the Covenant). Supra, n. 107, at p. 369.

124. Hoogenraad, D.v. Organisation for Pure Research in the Netherlands, supra, n. 116, at p. 377.Google Scholar

125. Board of the Teaching Hospital at the University of Amsterdam v.F.W. and M. C. C. H. G., Central Appeals Court, 16 February 1989, AB (1989) No. 164, cited in 21 NYIL (1990) p. 375, at p. 377. See also Heringa, loc. cit. n. 107, at pp. 4–5.

126. See, e.g., The 14th Amendment of the US Constitution (equal protection of the law). See Schachter, O., ‘The Charter and the Constitution: The Human Rights Provisions in American Law’, 4 Vanderbilt LR (1951) p. 643.Google Scholar Tomuschat comments: ‘It is the current tendency in many countries for judges not to hesitate to base their decisions on the most general and abstract principles of their legal order’. Tomuschat, , loc. cit. n. 3, at p. 44. Zander argues that rights which are phrased in vague and general terms are ‘more an advantage than a disadvantage’. He maintains that detailed solutions have to be left to the courts to work out. Whilst recognising that general terminology might lead to a degree of uncertainty, he considers that it gives people a chance to argue their case and allows the rights to be interpreted in a dynamic manner. Zander, op. cit. n. 80, at p. 38.Google Scholar

127. Cf., The Brind Case, supra, n. 30.

128. See, e.g., Macarthys Ltd. v. Smith [1979] IRLR 316.

129. See, e.g.,Alberta Union of Public Employees v. The Crown in Right of A Iberta, 81 CLLC 99. There the Alberta Court of Queen's Bench addressed questions concerning the legality of a statutory ban on public service strikes. Specific reference was made to Art. 8 ICESCR.

130. See, e.g., Texier, E/C.12/1990/SR.44, at p. 12, para. 54.

131. Burke et al., loc. cit. n. 25, at p. 302. See also Iwasawa, , loc. cit. n. 11, at p. 668. In the case of Gabrielle Defrenne v. Sabena (No. 1), (Case 43/75), [1976] ECR 455, the European Court of Justice distinguishedbetween direct and indirectdiscriminationunder Art. 119 of the EEC Treaty. Whereas the former was capable of being detected ‘on the basis of a purely legal analysis of the situation’, the latter required in certain cases ‘the elaboration of criteria whose implementation necessitates the taking of appropriate measures at Community and National level’.Google Scholar

132. For the conflicting interpretations to the ECHR adopted by the European Court and subsequent Belgian Courts, see Maresceau, loc. cit. n. 23, at pp. 23–27.

133. See, e.g., Leary, , op. cit. n. 2, at p. 57.Google Scholar

134. See, e.g., Evans, , loc. cit. n. 70, at p. 187.Google Scholar

135. Craig, , loc. cit. n. 108, at p. 859Google Scholar; Evans, A., ‘The Self-Executing Treaty in Contemporary American Practice’, in De Lege Pactorum: Essays in Honour ofWilson R.R. (1970) p. 3, at p. 17.Google Scholar

136. See infra, text accompanying n. 153.

137. Leary, , op. cit. n. 2, at p. 58.Google Scholar

138. Jackson, , loc. cit. n. 25, at p. 152.Google Scholar

139. Frovtova v. USSR, supra, n. 103.

140. Van Gend en Loos, supra, n. 41, where the ECJ in confirming the self-executing nature of Art. 12, mentioned that ‘The wording of Article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation…’

141. See supra, n. 116.

142. See, e.g., S.W.M.B. v. Mayor and Aldermen of Arnhem, Central Council of Appeal, 1 November 1983, NJCM-Bulletin (1983) p. 22, cited in 16 NYIL (1985) p. 501.

143. Shue, H., ‘Rights in the Light of Duties’, in Brown, P. and Maclean, D., eds., Human Rights and U.S. Foreign Policy (1979) p. 65.Google Scholar

144. Iwasawa, , loc. cit. n. 11. at p. 675.Google Scholar

145. Supra, n. 93.

146. See infra, text accompanying n. 153.

147. See Reisenfeld, , loc. cit. n. 71. at p. 552.Google Scholar

148. For example, in the Van Gend en Loos Case, supra, n. 41 the ECJ found that Art. 1 of the Treaty, which prohibited Member States from increasing customs duties, had ‘direct effect’ to the extent that individual rights might be derived therefrom despite the lack of any express reference to that effect.

149. See Iwasawa, , loc. cit. n. 11. at p. 684.Google Scholar

150. Jackson, , loc. cit. n. 25. at p. 150.Google Scholar

151. See van Dijk, , loc. cit. n. 14. at p. 636Google Scholar; Heringa, , loc. cit. n. 92. at p. 3Google Scholar; Drzemczewski, A., European Human Rights Convention in Domestic Law (1983) pp. 86–92.Google Scholar

152. Frowein, , loc. cit. n. 26. at p. 70.Google Scholar Part III of the Appendix to the European Social Charter (1961. is understood to have specifically excluded the possibility of direct application. It reads: ‘It is understood that the Charter contains legal obligations of an international character, the application of which is submitted solely to the supervision provided in Part IV thereof.’

153. Netherlands Railways v. Transport Union of the Federation of Netherlands Trade Unions et al., supra, n. 105. at p. 392.Google Scholar However, Frowein argues that Art. 6(4. should be seen as non-self-executing otherwise it would be inconsistent with Art. 5 (freedom of association). Frowein, , loc. cit. n. 26. at p. 70.Google Scholar

154. The opening phrase of most of the substantive articles within the Covenant is: ‘The States parties to the present Covenant recognise the right of everyone …‘ See, in particular, Arts. 1. and 1. which make no mention of ‘rights’ of the individual.

155. W.d.K. v. Public Prosecutor, Supreme Court, 6 12 1983, NJ (1984) No. 557, cited in 1. NYIL (1985. p. 526, at p. 528.Google Scholar Art. 8(l)(d) reads: ‘The States parties to the present Covenant undertake to ensure ’.

156. Netherlands v. L.S.V.B., supra, n. 107.

157. Iwasawa, , loc. cit. n. 11. at p. 684.Google Scholar

158. Compare, for example:

Art. 6(4. ESC: ‘… the Contracting Parties … recognise … the right of wotkers and employers to collective action …’

Art. 7 ICESCR: ‘The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work …’

159. Board of the Teaching Hospital at the University ofAmsterdam v. F.W. and M.C.C.H.G., supra, n. 125. See also, Heringa, , loc. cit. n. 107. at pp. 4–5.Google Scholar

160. Van Dijk, , loc. cit. n. 14. at p. 639.Google Scholar

161. The rights to equal pay for equal work, and equal remuneration for work of equal value in Art. 7(a)(i) are also relevant here.

162. Iwasawa, , loc. cit. n. 11. at pp. 687–691.Google Scholar It is perhaps pertinent to point out that the notion of ‘domestic validity’ as put forward by Prof. Iwasawa does not provide an entirely coherent explanation for the indirect effect of treaties in domestic law. Certainly, as he points out, it is wrong to assume that a treaty, merely because it has been deemed to be non-self-executing, no longer has any relevance to legal decision-making. However, to view the use of treaty norms in the interpretation and application of domestic law merely as a function of the more general rule that treaties form part of domestic law does not explain courts‘reliance upon unratified treaties in the US or Canada, for example, or the use of unincorporated treaties in the UK.

163. See infra, text accompanying nn. 193–208.

164. For the position in the UK, see Salomon v. Commissioner of Customs and Excise [1967.] 2 QB 116. For further discussion, see Brownlie, , op. cit. n. 19. at pp. 50–51Google Scholar; Mann, , op. cit. n. 33. at pp. 87–94Google Scholar. For Denmark see Gulmann, , loc. cit. n. 34. at pp. 32–33.Google Scholar

Such a presumption is also operated in the US, Germany and Italy with respect to directly effective treaty provisions in order to avoid conflict with existing statutes; see Jackson, , loc. cit. n. 25. at p. 160Google Scholar; Frowein, , loc. cit. n. 26. at pp. 68–69Google Scholar; Gaja, , loc. cit. n. 27. at p. 100Google Scholar. This is a slightly different case in so far as it operates against a presumption that the treaty provisions have domestic effect.

165. That non-self-executing treaties might be utilised is evident from Sei Fujii v. California in which the Alien Land Law of California was struck down as a violation of the 14th amendment despite the fact that the court found the human rights clauses of the UN Charter to be non-self-executing. Cf., Iwasawa, , loc. cit. n. 11. at p. 690.Google Scholar

166. For the position in Canada, see A.G. Canada v. A.G. Ontario [1937.] 1 DLR 67. at 678. For the UK, see The Parlement Beige (1878–79) 4 PD 129.

167. In the UK, if a legislative provision is clear and unambiguous, that interpretation must be adopted even if it is contrary to the terms of an international treaty. See, e.g., Lord Denning MR in R. v. Secretary of State for Home Affairs, ex parte Bhajan Singh [1976] QB 198 at 207G. In the Brind Case the House of Lords were unwilling to find a statute ambiguous merely because its terms were general allowing a wide measure of discretion. Supra, n. 30.

There is also some evidence that such a presumption should only operate in the case of statutes that were intended to fulfil obligations under the treaty concerned. See Lord Diplock, in Salomon v. Commissioners of Customs and Excise, supra, n. 164 at p. 143Google Scholar; Brownlie, , op. cit. n. 19 at pp. 50–51Google Scholar. It is considered, however, that the courts have not sought to restrict the operation of the presumption on this basis even where it might have been open to do so. See, e.g., R. v. Miah [1974] 2 All ER 37 where the ECHR was applied to the Immigration Act 1971.

168. Duffy, P., ‘English Law and the European Convention on Human Rights‘, 29 ICLQ (1980) p. 585, at p. 589.CrossRefGoogle Scholar

169. See Buchanan v. Babco [1978] AC 141, at 158F per Viscount Dilhorne. Cf., the opinion of Lord Wilberforce, ibid., at 152F.

170. See the Brind Case, supra, n. 30. Cf., the approach of the Court of Appeal in Derbyshire County Council v. Times Newspapers [1992] QB 770 (CA).

171. See Harris, D., ‘The Protection of Economic and Social Rights in Common Law Countries’, in Matscher, F., ed., The Implementation of Economic and Social Rights (1991) p. 201, at p. 220.Google Scholar

172. In Reference Re Public Service Employee Relations Act (Alta) [1987] 1 SCR 313, at 348–350, Dickson CJ noted that international conventions (among other international standards) were ‘relevant and persuasive sources for interpretation of the Charter's provisions’.

173. For the position in Canada generally see Claydon, J., ‘International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms’, 4 Supreme Court LR (1982) p. 287;Google ScholarMoulton, E., ‘Domestic Application of International Human Rights’, 54 Saskatchewan LR (1990) p.31;Google ScholarNorman, K., ‘Practising What We Preach in Human Rights: A Challenge in Rethinking for Canadian Courts’, 55 Saskatchewan LR (1991) p. 289;Google ScholarCohen, M. and Bayefsky, A., ‘The Canadian Charter of Rights and Freedoms and Public International Law’, 61 Can. BR (1983) p. 265; Brudner, loc. cit. n. 2, at pp. 233–235.Google Scholar

174. See, e.g., Reference Re Public Service Case, supra, n. 172; Slaight Communications Inc. v. Davidson [1989] 1 SCR 1038.

175. Supra, n. 174.

176. See, eg., R. v. Valente [1985] 2 SCR 673; R. v. Jones [1986] 2 SCR 284; Ford v. A.G. Quebec [1988] 2 SCR 712.

177. R. v. keegstra [1990] 3 SCR 697.

178. In Rodriguez-Fernandez v. Wilkinson, 654 F.2d. 1382 (1981), the court referred to the UDHR and the Inter-American Convention on Human Rights in interpreting the due process clause of the Fifth Amendment. Logan CJ commented:

‘Due process is not a static concept, it undergoes evolutionary change to take into account accepted current notions of fairness … It seems proper then to consider international law principles for notions of fairness as to the propriety of holding aliens in detention.’

See generally, Brudner, loc. cit. n. 2, at p. 234.

179. 118 NH 713, 393 A.2d 1387 (1978).

180. Ibid., at 716, 393 A.2d 1389.

181. 495 F.Supp. 1365.

182. Ibid., at 1379.

183. 501 F.Supp.544 (SDTex. 1980). Cf., Lillich, R., ‘International Human Rights Law in US Courts’, 2 J. Trans. L. & Pol. (1993) p. 1, at pp. 11–12.Google Scholar

184. See, e.g., Retail, Wholesale and Department Store Unions, Local 580v. Dolphin Delivery Ltd. (1986) 33 DLR 174. See generally, Weiler, P., ‘The Charter of Work: Reflections on the Constitutional izing of Labour and Employment Law’, 40 Univ. Toronto LJ (1990) p. 117;CrossRefGoogle ScholarBakan, J., ‘Constitutional Interpretation and Social Change: You Can't Always Get What You Want (Nor What You Need)‘, 70 Can. BR (1992) p. 307.Google Scholar

185. (27 May 1992), (CS).

186. Ibid., at 66 [translation].

187. Irwin Toy Ltd. v. A.G. Quebec [1989] 1 SCR 927, at 1003–1004. There it was decided that s. 7 did not encompass economic rights that related to ‘property’. It went on to say, however, that ‘this is not to declare, however, that no right with an economic component can fall within “security of the person” … [T]he rubric of “economic rights” embraces a broad spectrum of interests, ranging from such rights, included in various international covenants, as rights to social security, equal pay for equal work, adequate food, clothing and shelter, to traditional property- contract rights. To exclude all of these at this early moment in the history of Charter interpretation seems to us to be precipitous.’

188. Scott, C., ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights’, 27 Osgood Hall LJ (1989) p. 769.Google Scholar

189. General Comment No. 3, supra, n. 94, at p. 84, para. 5.

190. For the role of public policy in the UK common law, see generally, Lloyd, D., Public Policy (1953); Mann, op. cit. n. 33, at pp. 148–163.Google Scholar

191. For example, in Hurd v. Hodge, 334 US 24 (1948), the court stated:

‘the power of the federal courts to enforce the terms of private agreements is at all times exercised subject to the restrictions and limitations of public policy of the United States as manifested in the Constitution, treaties, federal statutes, and applicable legal precedents.’

For the position in Canada, see, eg., Re Drummond Wren [1945] 4 DLR 674. For the UK see Blathwayt v. Lord Crawley [1976] AC 397, and the comments of Duffy, loc. cit. n. 168, at pp. 606–607; and Derbyshire County Council v. Times Newspapers [1993] 1 All ER 1011.

192. Cf., Mann, op. cit. n. 33, at p. 153.

193. Cassese, loc. cit. n. 46, at p. 368.

194. Examples provided by Cassese are Austria, Ireland, Italy, Japan, the FRG, Greece and Portugal. Ibid., at pp. 369–70.

195. In common law countries customary international law is deemed to be an expression of a common human reason and therefore historically embodied in the common law. For the position in the UK see Buvot v. Barbuit (1736) 3 Burr. 1481; Triquetv. Bath (1764) 3 Burr. 1478. A certain amount of doubt was cast over the validity of this rule following the case of R. v. Keyn (1876) 2 Ex.D. 63.

196. E.g., the FRG, see Frowein, loc. cit. n. 26, at p. 67.

197. See, e.g., Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (1981).

198. Ibid.; Lareau v. Manson (1981) 507 F.Supp. 1177, see also Dickson CJ in Reference Re Public Service Case, supra, n. 174.

199. Mortensen v. Peters (1906) 8F (JC) 93.

200. Chung Chi Cheung v. The King [1939] AC lOO.But see Trendtex Trading Corp.v. Central Bank of Nigeria [1977] QB 529, at 578 (per Shaw LJ) in which it was argued that the doctrine of precendent would not apply to a new rule of customary international law in so far as it was contrary to an existing precedent that embodied die older rule of custom.

201. Meron warns that the tendency to impose treaty norms on non-parties requires that ‘attempts to extend their universality utilise irreproachable legal methods’. Meron, T., Human Rights and Humanitarian Norms as Customary Law (1989) p. 81.Google Scholar

202. North Sea Continental Shelf Cases, ICJ Rep. (1969) at p. 3.

203. Asylum Case, ICJ Rep. (1950) at p. 266.

204. See, e.g., Filartiga v. Pena-Irala, 630 F.2d. 876 (1980); Humphrey, J., ‘The Universal Declaration of Human Rights: Its History, Impact and Judicial Character’, in Ramcharan, B., ed., Human Rights Thirty Years After the Universal Declaration (1979) p. 20;Google ScholarWaldock, H., ‘Human Rights in Contemporary International Law and the Significance of the European Convention’, 11 ICLQ (1965) p. 15;Google ScholarClaydon, J., ‘The Application of International Human Rights Law by Canadian Courts‘, 30 Buff. LR (1982) p. 727;Google ScholarMcDougal, M., Lasswell, H. and Chen, L.., Human Rights and World Public Order (1980) pp. 272–274.Google Scholar

205. See Sohn, L., ‘The Human Rights Law of the Charter’, 12 Texas ILJ (1977) p. 129 at pp. 135–136.Google Scholar

206. See Meron, op. cit. n. 201, at pp. 84–85. See generally Simma, B. and Alston, P., ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’, 12 Aust. YIL (1992) p. 82.Google Scholar

207. Restatement of the Law: Third Restatement of US Foreign Relations Law, Vol. 2 (1987) p. 165.

208. Brudner, loc. cit. n. 2, at p. 223.