Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

232 | PRACTITIONERS GUIDE No. 6
law and to national implementation of international obligations. The
effectiveness will also depend on the legal system of each country and
to what extent ESC rights have been incorporated into domestic law.
Nevertheless, even where national legal systems do not provide directly
for remedies for ESC rights, their invocation may be a useful tool for the
interpretation of national laws concerning the provision of benefits or
social services for migrants, and may also help to support an eventual
communication against a violation submitted to an international human
rights mechanism.
The CESCR has stressed that, “[w]hile the general approach of each
legal system needs to be taken into account, there is no Covenant right
which could not, in the great majority of systems, be considered to possess
at least some significant justiciable dimensions”. 914 The Committee
accepts the possibility of resorting to administrative remedies for some
rights. These must in any case be “accessible, affordable, timely and
effective”. 915 However, the Committee stressed that there are some obligations
“in relation to which the provision of some form of judicial
remedy would seem indispensable in order to satisfy the requirements
of the Covenant.” 916 It stressed that judicial review and the judiciary’s
application of domestic law must be undertaken in consonance with the
ICESCR, otherwise “[n]eglect by the courts of this responsibility is incompatible
with the principle of the rule of law”. 917 The right of access to
courts for non-citizens without any discriminatory implementation, denial
or omission of ESC rights has been also highlighted by the CERD. 918
As noted in Section I.4, the obligation of non-discrimination is of immediate
effect. 919 In addition, the CESCR has found of immediate effect
the principle of gender equality (Article 3 ICESCR), the right to fair
wages and equal remuneration for work of equal value without distinction
of any kind (Article 7.1 ICESCR), freedom of association and trade
unions rights (Article 8 ICESCR), essential rights relating to child labour
(Article 10.3 ICESCR), the right to be free from hunger and to access
basic shelter (article 11 ICESCR), the right to free and compulsory primary
education (Article 13.2(a) ICESCR), the right of parents to have
their children educated in respect of their religious and moral convictions
(Article 13.3 ICESCR), the liberty of individuals and bodies to establish
educational institutions (Article 13.4 ICESCR), and the freedom
914 General Comment No. 9, The domestic application of the Covenant, CESCR, UN Doc.
E/C.12/1998/24, 3 December 1998, para. 10.
915 Ibid., para. 9.
916 Ibid., para. 9
917 Ibid., paras. 14 and 15.
918 See, CERD, General Recommendation No. 30, op. cit., fn. 18, para. 29.
919 CESCR, General Comment No. 3, op. cit., fn. 147, paras. 1 and 5. See, Articles 22 and 35,
Limburg Principles, op. cit., fn. 888.