referred to as self-execution or immediate applicability.132 Therefore, in monist jurisdictions, some provisions of international instruments are immediately applicable. 133 articles 13(3) and 13(4) For example, of the ICESCR are considered to be immediately justiciable as they do not require the state to make resources available.134 These rights can be guaranteed immediately without any further legislative intervention. The right to have access to education at all levels without discrimination is also seen as generally justiciable.135 However, the justiciability of some of the rights may depend on whether a particular country has established the requisite educational infrastructure. For example, the right to have access to education at any level is dependent on whether a state has already set up educational infrastructure providing such educational opportunities.136 If there is no such infrastructure, there is less likelihood that a court will see this right as justiciable, as it involves policy choices which would violate separation of powers. Therefore, even in monist jurisdictions, specific legislation may be necessary in order to give concrete content to the right to education and to make it fully justiciable. On the other hand, even countries without sufficient educational infrastructure have an obligation to work towards creating such United State’s accession to a treaty should be interpreted to be consistent with that treaty, unless Congress includes a specific directive that the United States intends to contravene international law. 132 However, this approach means that it is less clear where in the hierarchy of laws the provisions of the international instrument are placed. 133 ICESCR Article 13(3) states that “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.” Article 13(4) states: “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 I 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.” 134 UNESCO CESCR General Comment no. 9 The domestic application of the Covenant, 19th session, 3 December 1998 E/C.12/1998/24 http://www.hri.ca/forthereCord1998/documentation/tbodies/e-c121998-24.htm (last accessed 27 March 2007) at para 10. Article 13(2)(a) is also considered to be justiciable by the CESCR even though it does require allocation of resources: “primary education shall be compulsory and available free to all”. 135 See commentary of Mr Ariranga Pillay, Chief Justice of the Supreme Court of Mauritius and member of the CESCR in the UN Economic, Social and Cultural Rights Report of the High Commissioner for Human Rights Addendum, Report on the Workshop on the Justiciability of Economic, Social and Cultural Rights, with particular reference to the draft optional protocol to the ICESCR, 57th session, E/CN.4/2001/62/Add.2, 22 March 2001 http://www.unhchr.ch/Huridocda/Hurid oca.nsf/0/9715c4f1d48ad8c2c1256a1e004e5288/$FILE/G0112109.pdf (last accessed 26 March 2007). Beiter, The Protection of the Right to Education by International Law, at 399 and 475. 136 Beiter, The Protection of the Right to Education by International Law at 81 and 398-399, UNESCO CESCR General Comment no. 3 The nature of State party obligations Article 2, 5th session 14 December 1990, http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+3.En?OpenD ocument (last accessed 27 March 2007) at para 5. The Committee thinks that ss 13(2)(a), (3) and (4) are justiciable. This is not binding, but its views carry persuasive authority. 69