Able and Willing: Kosovo’s Inevitable Membership of the Council of Europe

[Andrew Forde is an Adjunct Lecturer at the Irish Centre for Human Rights.]

On 16 April 2024, Kosovo passed a major decision gate in its path towards membership of the Council of Europe (CoE) when the Parliamentary Assembly of the Council of Europe (PACE) recommended that it be invited to become a member state with a very strong majority of 131 votes in favour, 29 against and 11 abstentions. The importance of PACE endorsement cannot be understated. This represents a point of no return for Kosovo’s CoE membership ambitions, and it is now a question of when, not if Kosovo becomes the (new) 47^th member state of the CoE.

It was all the more poignant because the Rapporteur, Dora Bakoyannis, is a former Minister of Foreign Affairs of Greece, which doesn’t officially recognise Kosovo primarily due to the Cyprus question. However, the battlelines for the decisive CM consideration of the issue are now drawn. Serbia will do everything possible to articulate its legitimate concerns, despite the fact that it is unquestionably Serbs in Kosovo who stand to benefit most from Kosovo’s CoE membership through recourse to the European Court of Human Rights. In this post, I will consider some aspects of why, from a human rights perspective, it is time the accountability gap that has persisted in Kosovo should be closed by extending an invitation to join the CoE on occasion of the 75^th anniversary of the organization.

Context

It has been twenty-five years since NATO intervened in Kosovo to bring an end to conflict and prevent genocide by Yugoslav forces under the supreme command of Slobodan Milošević. The 1998-1999 war was a tragedy of enormous proportions for almost every family in Kosovo, and even today there are more than 1,600 people missing. Since then, the reality on the ground has changed profoundly. Following repeated failed efforts to reach a political solution to the conflict, Kosovo declared independence in 2008 after the Special Envoy of the Secretary-General on Kosovo’s future status, Martti Ahtisaari, conceded that independence was the only viable option. Although the declaration of independence is still disputed, in the opinion of the ICJ it did not violate international law. Kosovo has since rebuilt with a deliberate aim to develop a secure, pluralist democracy, based on European values. PACE emphasized this process is incomplete but has comprehensively advanced, and permeates every area of public policy in Kosovo.

Over the sixteen years since independence, Kosovo has sought to align with European (including CoE) standards and had progressively consolidated its sovereignty in a raft of areas from the justice system, to sport, to airspace management, with varying degrees of success. What is clear though, is that UN Security Council Resolution 1244 (1999) is for all intents and purposes redundant, save for underpinning the presence of KFOR, the OSCE and the EU rule of law mission (EULEX) Despite its formal function, the UN Mission in Kosovo (UNMIK) is little more than a symptom of political impasse, rather than an actor of practical import.

Kosovo applied for membership of the CoE on 12 May 2022 stating it was able and willing to adhere to CoE standards, having already been admitted as a full member of the Venice Commission in 2014 and the Council of Europe Development Bank (CEB) in 2013, and having had CoE cooperation programmes active since 1999, first under the umbrella of UNMIK and later under a bespoke cooperation framework. It took until 24 April 2023 for the Committee of Minister’s to forward the request to the PACE for an Opinion, an unprecedently delayed decision due to the “unprecedented circumstances” of the application, given that a number of Council of Europe member states do not recognise Kosovo as a state. The decision of the PACE Committee on Political Affairs and Democracy to recommend Kosovo be invited to become a member state on 27 March 2024 was the key turning point, and it was all but certain then that PACE plenary would toe the line.

Able and Willing?

Article 3 of the Council of Europe Statute stipulates that “[e]very member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms”, and that members must collaborate sincerely and effectively in the realisation of the aim of the Council of Europe.

In practice, this is a low bar, subject to a wide margin of appreciation. A good faith declaration of intent is essential, not necessarily evidence of full compliance with standards. Kosovo presents a compelling case on both fronts. It is consistently demonstrated its willingness and, as recognized by the eminent lawyers (Appendix 3), Kosovo’s legal framework is broadly in line with Council of Europe standards. Its Constitution is a very progressive instrument as it renders the ECHR and a swathe of international treaties directly applicable (see Art 22), whilst much of Kosovo’s legal system has transposed CoE standards. But like every aspiring member (indeed, every current member too), Kosovo has a lot more to narrow the gap between law and practice, and to do more to ensure a rights-respecting society based on the rule of law.

To this end, the Opinion sets out a vast range of post-accession commitments, many of which centre on the rights of the Serb minority, who have legitimate cause for concern that the Kosovo authorities are paying lip-service to their rights. A glaring example that will be fresh in their minds was the non-implementation of a judgment of the Constitutional Court of Kosovo confirming Dečani Monastery’s ownership of its land. It took Kosovo eight years and the prospect of a negative PACE report to finally act on the decision of its highest court. This is a damning and inexplicable indictment of a state governed by the rule of law that it refused to implement this judgment for so long. Some might even read the delay as a cynical political tactic. Had Kosovo been a member State of the CoE sooner, this case would certainly have resulted in a prominent violation of ECHR Article 1, Protocol 1. There are other areas where progress is too slow, such as in the areas of language rights for minorities. Learning from the experience of bad faith and the failure of post-accession criteria to generate sustainable outcomes in Russia, PACE will monitor Kosovo’s progress closely.

The Normative Case for Membership

There are compelling normative reasons for Kosovo to become the 47^th Member State of the CoE. I have discussed the accession process elsewhere, but it is important to emphasise here that membership is the critical enabler of the international human rights machinery.

Though the CoE has innovated in Kosovo (e.g. through monitoring like exercises), there is no substitute for direct access to monitoring, advisory and judicial mechanisms. Membership uniquely empowers individual rights-holders to hold the national authorities to account. It resolves an unacceptable human rights accountability gap which has lasted for more than two decades, by opening up the Kosovo authorities to international legal proceedings at the European Court of Human Rights for failures to vindicate the rights of individuals under the European Convention on Human Rights (ECHR). The Serbian minority will benefit most from access to the Court, particularly if the experience of Dečani is replicated elsewhere. Membership has many other benefits too, allowing parliamentarians, local councilors, civil society and of course government to cooperate with their European contemporaries to enhance standards, share experiences and address shortcomings. As the CoE has pivoted towards a post-peace Europe focusing on supporting justice and accountability in Ukraine, Kosovo’s legislators, lawyers, human rights defenders, civil society and academia have a huge amount to offer.

Right, But Not a Right

Despite the overwhelming normative argument in favour of membership, the CoE is a political body and – as paradoxical as it may seem for an organization based on universalist values – membership is a political privilege, not a natural right. It is the prerogative of the Committee of Ministers to decide who is admitted to (or expelled from) the CoE. The suggestion that any state deserves membership is a fallacy. True, Statutory Article 4 provides that “any European State” willing and able to subscribe to the principles of human rights and rule of law may be invited to join, and PACE Recommendation 1247 (1994) helped clarify that membership was “in principle open only to states whose national territory lies wholly or partly in Europe,” neither can be construed as a right to membership. This is especially the case for a state that does not yet enjoy universal recognition. However convincing the normative case for membership may be, the political obstacles need to be overcome.

The PACE decision this week makes it extremely difficult – almost impossible – for the CM to refuse to progress Kosovo’s membership application. To do so would create a new, serious stand-off between the two main CoE statutory bodies, which would be the antithesis of “Unity around our Values” as enshrined in the Reykjavik Declaration. A stand-off would be deeply unhelpful, and would play into the hands of those intent on undermining the organization. With that in mind, one must ask, why wait? Membership may not be a right, but now is surely the right time for Kosovo to be admitted.

Unresolved Conflict – An Impediment To Membership?

Kosovo is a conflict-affected territory, and Serbia is party to that conflict. Serbia has sought – in its view, legitimately – to actively prevent Kosovo fully exercising jurisdiction and consolidating its sovereignty. It has supported parallel institutions, and pursued an active international effort to derecognise it. It has actively stoked instability in Kosovo. But Serbia clearly has legitimate interests in Kosovo too, principally the rights of Serbian minority population resident in Kosovo, but also the many historical and religious assets. Kosovo represents ground-zero for Serbian religious identity. This makes it difficult for Belgrade to accept that actually the most effective way of ensuring the rights of the Serbian minority is to not stand in the way of Kosovo’s membership of the CoE. One must hope that cool heads prevail in Belgrade, and the temptation to withdraw isn’t pursued.

In any event, the mere existence of political conflict isn’t necessarily an obstacle to membership. There are numerous examples of new members joining in the midst of conflict. Armenia and Azerbaijan were both admitted having committed to resolving the conflict between them peacefully (a promise which Azerbaijan sadly reneged upon in 2023 in a most insidious manner). The prevailing logic of membership is not to expect perfection upon accession, but to support transformation over time. In Russia’s case, the PACE observed serious shortcomings in terms of the rule of law, and even despite Russia’s obvious and heinous crimes in Chechnya and the presence of its 14^th Army in Moldovan territory, it was accepted as a member state.

Next Steps

The PACE Opinion recommending Kosovo be invited to become the 47^th CoE member state will now be forwarded to the CM which must then decide how and when to deal with it. Liechtenstein currently holds the CM Chair, with Lithuania due to take over in mid-May. There will be enormous political pressure on the Chair to table this issue at the May Ministerial. What better way to bring the Reykjavik principles of being “United around our Values” to life than admitting a new, willing and able member state and expanding the scope of ECHR protection to almost 2 million more people on the 75^th anniversary of the Council of Europe?

Importantly, Kosovo does not require universal recognition to become a member state. It requires the appropriate majority of support, and for non-recognisers to acquiesce in that decision. Serbia can retain its diplomatic dignity by not explicitly recognizing Kosovo but, to ensure stability and legal certainty, when Kosovo becomes a member state, it does so unconditionally. All non-recognisers must fully accept all of Kosovo’s rights and obligations that flow from membership, and it must be afforded all diplomatic courtesies to ensure the work of the CoE is not impeded.

Conclusion

The population in Kosovo has existed in a geopolitical limbo since 2008 and a human rights accountability gap has flourished over that time due to its sui generis status. Membership would provide a system of standards and oversight which would help to nudge the government forward, progressively realizing standards of human rights, democracy and the rule of law, if there is good faith engagement with those standards. Kosovo must show continued good faith in accession, by demonstrating real and measurable commitment to the post-accession criteria, as a matter of urgency.

Kosovo is a democracy, albeit an incomplete one with many current and legacy human rights and rule of law challenges which are well known and openly discussed by its politicians and vibrant civil society. It has demonstrated through law, policy and practice that it is able and willing to commit to European standards. Undoubtedly for some, membership of the CoE is exclusively a political/recognition matter, but from a normative and legal perspective the case for Kosovo’s membership of the CoE is overwhelming. The PACE decision this week, and the eventual CM decision boils down to whether law or politics will prevail at the CoE. For the sake of the European human rights system, we should all hope it will be the former. The CoE must seize the opportunity to close a prolonged accountability gap, and open a new chapter with a state that is clearly committed to its standards, particularly at a time where European democracy is under threat from on so many fronts. The 75^th Anniversary is the right time for the organisation to show leadership, unity and commitment to rights-holders by finally admitting Kosovo to the Council of Europe.