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Human rights courts often behave as constitutional courts especially when they have the ability to control the “separation of powers” in States in accordance with human rights conventions (“conventionality control”). This study comments on the latest “abuse of power” jurisprudence of the European and Inter-American courts of human rights, which embraces rich implications for re-evaluating general and specific provisions that place democratic limitations on human rights violations. The first section confirms that the courts have recently implemented conventionality control of “abuse of power” against judicial independence, voices of political opposition and media pluralism, in all such unfair exercises of authority adverse influences are exerted on individual (human rights) and collective (democracy) aspects. The next section justifies or criticises the courts’ decisions on the pro-democratic fair balance tests (legality, legitimacy and proportionality) embodied in human rights conventions’ general and specific limitation clauses, which have rarely been scrutinised until recent cases of “abuse of power”. In essence, this study shows that value-oriented momenta in their practical decisions can contribute to a future mapping of constitutionalism beyond the State (ius constitutionale commune), limiting domestic abuse of kratos (power) of the demos (people) in terms of international human rights sources.
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Indigenous theorists have developed the multi-spatio-temporal accounts of relationality among humans, natures, and animals. In the context of the Arctic, a holistic approach that integrates the indigenous peoples, frozen water, and polar animals is advocated to ensure identity, spirituality, and hydrosocial or cryosocial relations. Such an ontological approach gains importance as the life-threatening phenomenon of climate change is increasingly affecting every aspect of the relationality, happening faster in the Arctic than anywhere on the planet. The adverse effects of climate change on the lives of Arctic indigenous peoples living together with natures and animals pressure us to reconceptualize the meaning of life in constitutional and international law. This paper examines the recent trend to extend the right to life from physical existence to decent existence of indigenous peoples, natures, and animals. It particularly analyses the climate litigations filed by Arctic indigenous peoples, in which they tailor their legal arguments in line with the concept of a dignified life. The author argues that the ontological right to life with dignity not only remedies the vulnerable positions of Arctic indigenous peoples but also corroborates the resilience of their hydrosocial or cryosocial relations with natures and animals.
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Abstract
This rejoinder is to provide author’s answers to the questions posed by commentators. The first issues is the analytical scope and methods in comparison between the Inter-American and European Courts of Human Rights. The author particularly responds to the lack of analysis on social rights. The second issue is the political backlashes against the judicial control by human rights courts. The author replies that the role of “political”conventionality control complementing the judiciaries is of importance.
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Abstract
I am honored to be invited to this symposium featuring on my recent book and to receive comments from two distinguished experts, Sabrina Ragone and Jorge Contesse; for this I sincerely thank Editors-in-Chief, in particular Giuseppe Martinico, for convening this fantastic symposium. Taking this opportunity, I would like to illustrate the whole picture of this project for readers. The first section identifies the research problem and explains about the main topic, namely, the doctrine of conventionality control (1). Next, the second section provides a summary of the contents of each chapter (2). Finally, the third section presents the most original contribution of this book, that is, the trapezium model of the relationship between international and domestic law (3).
Professor Toshiki Mogami, the featured figure of this memorial edition, has developed his academic career in international law and politics. Professor Mogami’s original normative and analytical framework is characterized by himself as Jus Contra Anarchism et Oligarchism: international law against interstate and institutionalised violence. The editors extract the very essence of his teachings from Professor Mogami’s masterpieces, specifically, International Law as Constructive Resistance towards Peace and Justice.
Professor Toshiki Mogami, the featured figure of this memorial edition, has developed his academic career in international law and politics. Professor Mogami’s original normative and analytical framework is characterized by himself as Jus Contra Anarchism et Oligarchism: international law against interstate and institutionalised violence. The editors extract the very essence of his teachings from Professor Mogami’s masterpieces, specifically, International Law as Constructive Resistance towards Peace and Justice.