Incorporation
- The status of international human rights instruments in each State varies depending on their legal system and constitutional structure.
- For some States, the ratification of or accession to any international instrument results in its automatic incorporation into domestic law. The instrument becomes immediately enforceable. Whether legal provision can be directly invoked before domestic courts depends on the self-executing force of the provision. However, in general, all domestic legislation and policies should be interpreted and applied in conformity with the international instrument.
- For other States, the international instrument has no legal force domestically unless and until special enabling legislation is adopted. In some cases, this may be done through a constitutional amendment.
- According to the CRC Committee, incorporation should allow the provisions of the CRC to be directly invoked before the courts and be applied by national authorities (GC 5, para 20).
- Every jurisdiction is unique and operates within its own legal, economic, political and social context; therefore incorporation can take many forms and generally includes legal and non-legal measures (Kilkelly et al., 2021).
- Regardless of the nature of the legal system and constitutional structure, incorporation of the CRC and its provisions requires the application of legal methods of incorporation, one of which is children’s rights legislative reform.
- Legislative reform does not take place in isolation. It interacts with other legal and non-legal measures. These other measures and their interaction with legislative reform will be addressed in this section.
