'It's the Autonomy, Stupid!' A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward

Abstract

Opinion 2/13 of the Court of Justice of the European Union (striking down the Draft Agreement on accession to the European Convention on Human Rights) has evoked widespread “outrage.” The Court’s Opinion is generally derided as “unsubstantiated,” purely “self-interested,” and “playground politics.” This Article disagrees with that assessment. The Article provides the first comprehensive legal analysis and constitutional reconstruction of the Opinion’s many objections to show why the Court’s concerns are mostly warranted. At the same time, however, the Article explains why accession to the ECHR is not only important for human rights, but also vital to save the European Union itself. Finally, the Article points the way forward by identifying the changes that must be, and can be, made to allow accession to proceed.

Keywords: Opinion 2/13, European Union, Constitutionalism, Common Foreign and Security Policy, European Convention on Human Rights, Accession, EU External Relations