The paper aims at answering to two research questions: a. which standards of judicial scrutiny national and supranational courts apply when deciding cases involving the recognition of rights to non-citizens? b. 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 (ex multis Sweet Stone, 2010). Indeed supranational courts challenged the theories that make the recognition of (at least some categories of) rights contingent upon the status of citizenship (ECHR ??? Koua Poirezz v. France, September 30th, 2003; ECJ ??? Kadi v. UK (2008) C-402/05 P) 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 [2005] UKHL 66; Conseil constitutionnel n. 89-269 DC, January 22nd, 1990). Nevertheless, 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. With a view of elucidating these differences and their consequences for the cosmopolitan theories, the paper proposal will analyse in both an horizontal (inter-State) and a vertical (between State and a Supranational jurisdiction such as the European Court of Human Rights) comparative perspective: a. the type/category of right which is recognized and protected irrespective of the citizenship; b. the level (strict, based on reasonableness, ???intermediate???) of judicial scrutiny applied by Courts.
Measuring cosmopolitanism in Europe: standards of judicial scrutiny over the recognition of rights to non-citizens
ROMEO, GRAZIELLA
2014
Abstract
The paper aims at answering to two research questions: a. which standards of judicial scrutiny national and supranational courts apply when deciding cases involving the recognition of rights to non-citizens? b. 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 (ex multis Sweet Stone, 2010). Indeed supranational courts challenged the theories that make the recognition of (at least some categories of) rights contingent upon the status of citizenship (ECHR ??? Koua Poirezz v. France, September 30th, 2003; ECJ ??? Kadi v. UK (2008) C-402/05 P) 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 [2005] UKHL 66; Conseil constitutionnel n. 89-269 DC, January 22nd, 1990). Nevertheless, 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. With a view of elucidating these differences and their consequences for the cosmopolitan theories, the paper proposal will analyse in both an horizontal (inter-State) and a vertical (between State and a Supranational jurisdiction such as the European Court of Human Rights) comparative perspective: a. the type/category of right which is recognized and protected irrespective of the citizenship; b. the level (strict, based on reasonableness, ???intermediate???) of judicial scrutiny applied by Courts.File | Dimensione | Formato | |
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