Through qualitative legal research, this paper will answer the question: ‘How can constitutionalism be balanced with a human rights perspective, in EU accession to the ECHR?’ We hypothesize that...Show moreThrough qualitative legal research, this paper will answer the question: ‘How can constitutionalism be balanced with a human rights perspective, in EU accession to the ECHR?’ We hypothesize that this balance is possible. From the current academic debate, three theories applicable to this research are distilled: constitutionalism; a human rights perspective; and institutionalism. Through application of the first two theories, a concrete proposal for the way forward in EU accession to the Convention is constructed. The legal options for this proposal consist of Treaty revisions (including the adoption of a ‘notwithstanding’ protocol), unilateral measures (reservations, declarations, and agreements), and renegotiation of the Draft Accession Agreement. Thirteen amendments are proposed: eleven to the Draft Accession Agreement; one to the Draft Explanatory Report; and one to the TEU. Furthermore, it is argued throughout this research that institutionalist tendencies matter, but cannot serve as sole explanations for the Court’s reasoning. As the key conclusion, we find that a way forward in accession, that considers both constitutional demands and a human rights perspective, exists. Appended to this paper, a comprehensive proposal for this way forward is introduced.Show less
