Once international ratification has taken place, the State has expressed its consent to be bound by the treaty and the Convention has entered into force for it. However, it should not be assumed that the Convention has automatically become part of its national law.
There are two main approaches to incorporating treaties within the domestic legal system, usually as a result of legal traditions and often reflected in national constitutions.
Monist countries assume that domestic law and international law form one system of law. International law does not need to be translated into national law. The act of ratifying an international agreement immediately incorporates it into national law. International law can be directly applied by a national judge and directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules. In some States, international law always has priority while others adopt the lex posteriori rule. In some State parties to the Convention, such as Argentina, Chile, Costa Rica, Croatia, Hungary, Mali, Niger, Qatar, Slovenia and Spain, the provisions of the Convention have direct legal effect on the national legal framework and are in principle directly applicable, including in courts of law. In relation to other human rights treaties, such as the International Covenant on Economic, Social and Cultural Rights, individuals have gone to court with allegations of breaches of treaty rights and won compensation or reparation.
In dualist countries, the international and national legal systems are seen as separate. The international human rights treaties to which these States are a party have no force, as such, within their domestic legal systems and domestic legislation must be adopted to incorporate the treaty into the domestic legal order. While some State parties have made amendments to their legislation to ensure compliance with the Convention, it appears that the steps taken so far fall short of giving direct effect to the Convention in the domestic system.
If a dualist country does not translate an international treaty into domestic law, for example, out of negligence or because the purpose of the ratification/accession was merely political, its implementation will remain uncertain. If the State does not translate the Convention into national law once it has ratified it, those in most need of having its provisions applied might not be protected by it. Examples of dualist countries are Australia, Canada, India, Kenya, Malawi, South Africa, United Kingdom and Zambia.
Human rights treaty bodies have often recommended incorporation of their treaties into the domestic legal order so as to realize their full potential. For example, in its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, the Human Rights Committee, while noting that the International Covenant on Civil and Political Rights does not explicitly require States parties to incorporate the Covenant, expressed the view “that Covenant guarantees may receive enhanced protection in those States where the Covenant is automatically or through specific incorporation part of the domestic legal order” and invited States parties to proceed accordingly.
The Committee on Economic, Social and Cultural Rights expressed similar views in its general comment No. 9 (1998) on the domestic application of the Covenant: “legally binding international human rights standards should operate directly and immediately within the domestic legal system” and “while the Covenant does not formally oblige States to incorporate its provisions in domestic law, such an approach is desirable”.
Even in countries where it is necessary for legislation to refer to or reproduce the content of a treaty, judges have in some cases developed innovative ways of making use of international standards. For example, although South Africa is not a party to the International Covenant on Economic, Social and Cultural Rights, its Constitutional Court has used general comments of the Committee on Economic, Social and Cultural Rights to interpret the context of economic, social and cultural rights in the South African Constitution.