This Essay joins the chorus of criticism, but also aims to deepen some of the analysis, as well as focusing it on wider questions of judicial dialogue and autonomy. Where relevant for the purpose of its critique, the Essay also refers to the View of Advocate General Kokott, which is generally much more positive in tone—even if it also finds fault with some of the provisions of the Accession Agreement. It starts with an attempt to give some basic meaning to the dialogue concept, on which it may be possible to find some agreement. The argument is that, at a minimum, the ECtHR should be able to exercise its core function of controlling compliance with the Convention norms, which are within their jurisdiction. It then examines the CJEU’s approach towards the Accession Agreement, arguing that it fails to respect that core function. The Essay goes on to consider the case “for the defense,” and in favour of the current status quo, but finds that case to be unconvincing.
Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky,
38 Fordham Int'l L.J. 955
Available at: http://ir.lawnet.fordham.edu/ilj/vol38/iss4/2