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The Pro Homine Principle's Role in Regulating the Relationship between Conventionality Control and Constitutionality Control

European Journal of International Law, Vol. 28, No. 2, 2017, Forthcoming

Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2016-13

Posted: 7 Jun 2016 Last revised: 22 Apr 2017

Yota Negishi

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Comparative Public Law and International Law

Date Written: June 6, 2016

Abstract

This paper conducts a comparative analysis of the American and European Conventions on Human Rights to review the relationship between conventionality control and constitutionality control assumed by domestic courts. First, the analysis negates the monist pyramid model by pointing out the limits of the supremacy of international law and constitution. Given the integration of conventionality control into constitutionality control in practice, this study instead presents the normative framework of the trapezium model, crowning the common values recognized by both national constitutions and international law. This research also contributes to clarifying the pro homine principle, a fitting concept to the trapezium schema, focusing on the most favorable treatment for individuals. Specifically, it proves the principle’s double function to offensively pierce or defensively safeguard the boundary between international and domestic legal orders. Finally, it argues that in cases of conflicting rights between different individuals, the pro homine principle relativizes an absolute protection of certain rights to strike a balance between them. In essence, conventionality control and constitutionality control should be coordinated by the open-minded, substance-oriented, pro homine principle within the pluralist trapezium, in lieu of the principle of the closed, formal supremacy of international law or constitution within the monist pyramid.

Keywords: European Convention on Human Rights, American Convention on Human Rights, conventionality control, constitutionality control, supremacy of international law, supremacy of constitutional law, pro homine principle, constitutionalism, legal pluralism

Suggested Citation

Negishi, Yota, The Pro Homine Principle's Role in Regulating the Relationship between Conventionality Control and Constitutionality Control (June 6, 2016). European Journal of International Law, Vol. 28, No. 2, 2017, Forthcoming; Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2016-13. Available at SSRN: https://ssrn.com/abstract=2791008

Yota Negishi (Contact Author)

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

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