2006 Fiscal Year Final Research Report Summary
Research into the Application of the international human rights treaty in the domestic court in Japan and France
| Project/Area Number |
17530027
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Public law
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| Research Institution | Hosei University |
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Principal Investigator |
TATEISHI Hiroko Hosei University, Faculty of Law, Professor, 法学部, 教授 (20308795)
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| Project Period (FY) |
2005 – 2006
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| Keywords | International human rights law / Supreme Court of Japan / application the international treaty in the domestic court / International protection of the human rights / European human rights Convention / 最高裁判所と条約 / ヨーロッパ人権条約 |
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| Research Abstract |
In the process of the "jurisdicisation" of the International Community, the emergence of international human rights law as a significant dimension of world order and foreign policy for many powerful states is one of the most exciting things.
This growth of human rights law is surprising because it depends on states contributing to the erosion of their own sovereignty.
The application of the international human rights treaties in the domestic courts gives rise to a series of basic questions. Why the lawyer have to apply les treaties instead of the Constitution? Why the international human rights treaties 'status is higher than the law? What are the specific contributions made by international litigation?
In many states, including those that are democratic, judicial institutions do not entertain human rights complains, much less to offer comprehensive judicial protection.
In Japan, it is very few that the Supreme Court apply the international human rights treaties. It's because of the reason of the independence of the judicial power, the theory of distinction between the Constitution and the treaty in the point of view of the national sovereignty.
On the other hand, in France, recently, the domestic court have to apply the European human rights convention. It because of the system of the control of this Convention (Court system) and the article 55 of the Constitution (treaty is legally superior than the law). But, recently, there is the theory that pretend the integration of the European human rights Convention in the "Bole de constitutionnalite", that's mean constitutional norm.
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