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A Cosmopolitan Legal OrderKant, Constitutional Justice, and the European Convention on Human Rights$
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Alec Stone Sweet and Clare Ryan

Print publication date: 2018

Print ISBN-13: 9780198825340

Published to Oxford Scholarship Online: June 2018

DOI: 10.1093/oso/9780198825340.001.0001

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Beyond Borders

Beyond Borders

(p.203) 6 Beyond Borders
A Cosmopolitan Legal Order

Alec Stone Sweet

Clare Ryan

Oxford University Press

This chapter charts the growing capacity of the European Court to protect the rights of those who are not citizens of member states of the Council of Europe. The Court’s sustained commitment to robustly enforcing the right to life, the prohibition of torture and inhuman treatment, and the right to a court and judicial remedy facilitated the development of three strains of cosmopolitan jurisprudence. The first operationalizes the Kantian principle of hospitality, covering expulsion, extradition, and the treatment of refugees. The second extends protections to persons whose rights have been violated by states who are not parties to the Convention, or by state parties exercising jurisdiction outside of Convention territory. The third instantiates dialogues with other treaty-based regimes when it comes to overlapping obligations to protect rights. These dialogues suggest that constitutional pluralism is an emergent property of the structure of international law beyond Europe.

Keywords:   European Court, non-refoulement, state jurisdiction, equivalent protection doctrine, mutual recognition, polyarchy of courts, extraordinary rendition, Security Council Resolutions, national courts, Kant, constitutional pluralism

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