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Measuring Cosmopolitanism in Europe: Standards of Judicial Scrutiny Over the Recognition of Rights to Non-Citizens

Graziella Romeo

Keywords: Cosmopolitanism; Europe; Judicial Scrutiny; Rights; Non-Citizens

The paper aims at answering two research questions, the first concerns standards of judicial scrutiny national and supranational courts apply when deciding cases involving the recognition of rights to non-citizens, while the second regards how and why the differences among such standards of judicial scrutiny impact cosmopolitan theories. Authors supporting cosmopolitanism envisage the progressive construction of a cosmopolitan legal order in the recognition of rights irrespective of the status of citizenship, at least with regard to the European Courts' attitude. Indeed supranational courts challenged the theories that make the recognition of (at least some categories of) rights contingent upon the status of citizenship (ECtHR, Koua Poirezz v France; CJEU, Kadi v UK) in cases involving third country citizens. European domestic courts adopted the same approach in a number of cases (House of Lords, R v SSHD ex parte Limbuela; French Constitutional Court, Decision No 89–269). Analysing judicial argumentation techniques, the Author argues that there are differences in the standards of judicial scrutiny applied by supranational and domestic courts, which in turn express distinctive views of cosmopolitanism as well as different understandings of the minimum content of the cosmopolitan citizenship.

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