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The Conventionality Control of Domestic Law: Constitutionalization of International Adjudication and Internationalization of Constitutional Adjudication

About the Project:

Research Problem: The relationship between the international and national legal orders has been one of the most controversial issues. In the field of human rights protection where international and constitutional sources are greatly overlapping, States Parties and treaty organs are required to control the compatibility of national acts with human rights conventions (conventionality control), which is analogous to the norm-control in terms of national constitutions (constitutionality control). The judicial function is particularly important where human rights violations are structurally caused by the dysfunctions of national legal systems.

Part 1: The European and Inter-American Courts of Human Rights have exercised conventionality control in accordance with the European and American Conventions on Human Rights. Their functions are based on the constitutional principles of the rule of law, democracy or checks and balances. The Courts are authorized to develop the Conventions standards that are generally applicable beyond individual cases (Chapter 1). The Courts also conduct the judicial review of national acts against the developed yardstick, and order specific remedial measures to reconstruct domestic legal systems (Chapter 2).

Part 2: With the influence of the subsidiary norm-control by human rights courts, domestic courts have reconciled conventionality and constitutionality controls within the domestic legal orders. These practices imply that constitutionality control is necessarily complemented by conventionality control. In fact, national judges have integrated human rights conventions into national constitutions in order to converge the parallel judicial controls (Chapter 1). Moreover, they utilize human rights conventions to decentralize the norm control authority from constitutional judges to all ordinary judges (Chapter 2).

Conclusion 1: Conventionality control parameters are interpreted and applied in the light of the substantive contents which are truly favorable to individuals (the pro homine principle) rather than the formal hierarchy.

Conclusion 2: Conventionality control powers are flexibly concentrated or diffused depending on the achievement level of conventionality control and within institutional limitations.

PhD candidate

Yota Negishi