Setting the Cat amongst Pigeons: Kosovo’s Application for Membership of the Council of Europe

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Kosovo is one of the few places in Europe not party to the European Convention on Human Rights due to a legacy conflict with Serbia. Kosovo declared independence in 2008 after a bloody war followed by a period of international administration, but this is strongly disputed by Serbia which claims exclusive sovereignty over the entire territory. The conflict has given rise to a protracted stalemate which has directly limited Kosovo’s ability to engage with, and benefit from, Europe’s human rights protection system. In spite of this, for more than 10 years, successive Kosovo Governments have committed to applying for membership of the Council of Europe (CoE) imminently. In 2013, then Prime Minister Hashim Thaçi, made the most decisive moves towards lodging an application, describing it as the “next natural step” following Kosovo’s admittance to the CoE Development Bank and the European Commission for Democracy through Law (Venice Commission). However, the letter of application never came. Then on 12 May 2022, Deputy Prime Minister and Minister of Foreign Affairs Donika Gërvalla-Schwarz reportedly submitted a letter of request for membership on behalf of the Government of Kosovo to the Deputy Secretary General of the CoE.

The letter of application is a formality which, in principle, triggers a well-established process that can take several years to complete. This article will offer some preliminary reflections on the merits of membership, whether the application can be considered, whether Kosovo could become a member despite its contested status, and what might happen next.

An uphill battle

Before considering the merits of the application, both for and against, it is necessary to begin with an honest reflection. For many, Kosovo’s potential CoE membership has absolutely nothing to do with the noble pursuit of human rights standards. Instead, it is unashamedly a question of the consolidation or rejection of a claim of statehood. Though each of these positions is legitimate depending on one’s perspective, from a human rights law perspective they are little more than a cynical instrumentalization of Europe’s human rights system. That makes it all the more important for Kosovo’s request to accede to the CoE to be examined from a normative perspective before it is decided upon politically.

There are at least three possible arguments against Kosovo’s membership of the CoE at this time: 1) territorial integrity and the existence of UN Security Council Resolution 1244 (1999), 2) prejudicing ongoing negotiations, and 3) the precedent-setting risk.

The first is that the Kosovo’s candidature represents a threat to the territorial integrity of Serbia, a Member State of the CoE since 2003. Kosovo’s accession necessarily would result in a definitive change of Serbia’s map, which prima facie would be seen as a violation of fundamental principles of international law. UNSCR 1244 noted the importance of the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act, and as resolutions adopted by the Security Council acting under Chapter VII of the Charter, are considered binding in accordance with Article 25 of the Charter, any violation of Serbia’s territorial integrity would be seen to represent a further breach of international law.

However, the very purpose of UNSCR 1244 was to place Serbia’s jurisdiction into a state of abeyance pending a final settlement. Kosovo has not been under Serbian jurisdiction for the past two decades and over the time the facts on the ground have changed profoundly, including the democratic legitimacy of the Kosovo institutions. The specific contours, let alone the outcome of the final status process were left wide open by UNSCR 1244, up to and including full statehood. Quite aside from the fact that the majority of CoE Member States recognise the legitimacy and primacy of the Kosovo Constitution (and this is critically important), it would not appear logically inconsistent for the CM to be constrained by UNSCR 1244 when Serbia’s jurisdiction is held in a state of abeyance and 1244 is not prescriptive on the final outcome. This though, is inextricably linked to the final status discussions.

The second normative argument that might be made against the application is that it risks prejudicing or undermining ongoing final status (so-called ‘normalisation’) discussions which have been mediated by the EU since 2011. One might argue that the application rides roughshod over those negotiations, whilst simultaneously importing a conflict into the CM Chamber. The SG repeatedly emphasises – perhaps even overstates – that the CoE is not equipped to settle conflicts. The example of the conflict in Georgia which has been on every weekly agenda of the CM since 2009 with little tangible effect illustrates this. Peace will not be negotiated in Strasbourg, even if the ECHR and the CoE acquis are the bulwark of the continent’s democratic security, indeed I have argued that the CoE should engage more with legacy conflicts. The international law principle of good faith requires talks to be given the time and space to run their course towards a mutually-agreed conclusion. In reality, whilst both parties are ostensibly engaged in a process towards an internationally legally binding agreement on Kosovo’s final status, they remain diametrically opposed, with negligible progress shown since the 2013 Brussels Agreement. When one considers the lack of meaningful progress, the talks appear to have been largely performative and could be characterised by a distinct lack of good faith. Their mere existence is neither an indicator of progress nor deterministic of a sustainable outcome. On the contrary, with the wrong parameters, talks can become a distraction from finding lasting solutions. The process of considering Kosovo’s status in the CoE will be fraught, but it could actually present an opportunity for mediators to reframe talks, and refocus the parties towards the achievement of a mutually agreed and sustainable outcome.

The third argument that I will mention is the risk of contagion. Kosovo’s application, if successful, could be precedent-setting. It would no longer be taboo for contested territories to see a pathway to membership, no matter how remote the possibility. However, here is where Kosovo must be distinguished from all other contested territories. Kosovo is a sui generis case, and conflating it with others is fallacious. Kosovo was subject to a UN mandated international administration for almost a decade following a war. Since then, it has voluntarily articulated an independent pro-European strategic ambition, under a period of supervised independence it aligned its legal framework to European standards and has deeply embedded the ECHR into its constitutional order. Its Constitutional Court not only applies the ECHR, it systematically engages the jurisprudence of the ECtHR. Members of the Kosovo Assembly participate in sessions of the Parliamentary Assembly (PACE) and monitoring-like processes have been developed. Finally, it has articulated CoE membership as a strategic priority and has secured two CM decisions which effectively recognise its independence. No other contested polity in Europe is remotely comparable. Most are highly dependant on a parent state, often with a strong interest to associate or integrate (for example South Ossetia). If one is honest about the facts, the contagion argument simply does not hold water.

The merits of membership

The main arguments in favour of membership on the other hand relate to first principles: accountability, effectiveness and European public order.

As regards accountability, access by individuals in Kosovo to the European Court of Human Rights currently is effectively impossible as Kosovo is not a party to the ECHR. Some might argue that Kosovo was brought formally within the scope of the ECHR upon Serbia’s accession to the CoE, but this is little more than a red herring. As noted above, UNSCR 1244 placed Serbia’s jurisdiction over Kosovo in a state of abeyance, so the ECHR is of no practical or justiciable international legal consequence to Kosovo. Yet, Kosovo has deeply embedded the ECHR into the domestic legal order and taken decisive steps to align its legal framework with European standards. Article 22 of the Constitution renders the ECHR and the CoE Framework Convention for the Protection of National Minorities along with several other international treaties directly applicable. Judgments of Kosovo’s superior Courts are not subject to the supervisory jurisdiction of the ECtHR. Yet, individuals have no further recourse in case they feel their rights under the ECHR have been violated or not effectively vindicated by the Kosovo authorities or the Courts.

In terms of effectiveness, Kosovo is unable to avail of the full panoply of CoE supports. Cooperation between the CoE and Kosovo has been relatively comprehensive (though not always harmonious), carried out based on the functional capacity of Kosovo authorities. Several CoE monitoring and advisory mechanisms even operate based on innovative ad hoc arrangements. The lack of consensus at the CoE required a strict approach of status-neutrality, with efforts focussed on democratic reforms, strengthening the domestic human rights protection system and enhancing the rule of law. Whilst this engagement should be applauded, the situation is wholly unsatisfactory from a human rights perspective and unsustainable as it relies extensively on the good faith of the Kosovo authorities and international partners such as the UN Mission in Kosovo, the OSCE and the EU.

Finally, in terms of European public order, the purpose of the Convention system is to protect individual human rights, and it does so by establishing duties on the part of states or their agents while recognising that others may bear human rights responsibilities. Blind spots of any kind create the space for impunity and generate a risk of human rights violations occurring without the possibility of effective and independent review processes or access to effective remedies. For this reason, the public order imperative to avoid human rights ‘grey zones’ is inextricably linked to the object and purpose of the ECHR.

Europe’s human rights protection system can only work effectively and relevant authorities can only be held accountable for human rights standards in a meaningful way via membership. Membership ensures all people in Kosovo benefit from the rich human rights acquis provided for via CoE Treaties and soft law standards. Minority communities in particular stand to benefit from membership given the challenges they have occasionally faced in vindicating their rights vis-à-vis Kosovo institutions (for example, the non-execution of the 2016 Constitutional Court ruling on Dečani Monastery). From a strictly normative perspective, the case for membership is very strong – even compelling – but is the application itself legally admissible?

Is Kosovo’s application admissible?

Perspectives on the prospect of membership of Kosovo tend to focus on politics not objective legal or other considerations, making any discussion on Kosovo a rather divisive and contentious affair. From the perspective of Serbia and the dozen non-recognising CoE Member States, Kosovo doesn’t possess the international legal personality to apply. However, the vast majority of CoE Member States disagree with this contention. The fact that in 2014 the Committee of Ministers already accepted Kosovo’s request to become a member of the Venice Commission, without any conditionality regarding its status, is material in this context.

Never in the 70+ year history of the CoE has a contested territory applied, let alone been granted membership of the CoE. However, that by no means rules out the possibility this time. On the contrary, Kosovo is a sui generis case with a complex and nuanced relationship with the CoE. It simultaneously occupies several positions along the status spectrum within the CoE as a full member of the Venice Commission and the CoE Development Bank, both of which were subject to decisions of the Committee of Ministers, and it holds a special status at the PACE which is akin to independent observer status. This all matters.

According to PACE Recommendation 1247 (1994), any state “whose national territory lies wholly or partly in Europe” should be eligible, in principle, to apply for membership of the CoE. The drafters noted that the boundaries of Europe had not yet been comprehensively defined under international law and therefore are difficult to determine, so suggested the CoE be guided by the generally accepted geographical limits of Europe which correspond to the entire land territory of Europe from the Atlantic Ocean to the Ural Mountains, inclusive. Elsewhere, I have described this as the Urals Formula. In its reply, the Committee of Ministers maintained an open mind whilst avoiding giving the impression that all European polities had an automatic right to join the CoE, stressing that “[f]uture candidatures will be examined on their own merits.” This suggests no prima facie impediment to any European polity applying, but of course the implicit assumption is that no contestation exists over whether or not that polity is indeed a sovereign state. Importantly though, it also implies that any candidature received would be considered on merit.

As a matter of law, Article 4 of the CoE Statute affords extensive discretion to the CM to decide how to proceed in relation to new members. It is a matter for the CM collectively to decide if an application is admissible and if an applicant State is deemed to be able and willing to fulfil the provisions of Article 3. Under Resolution (51)30 A of 3 May 1951 on the Admission of New Members the CM must first consult the PACE before inviting a State to become a Member or an Associate Member. The CM might be well served to allow the CoE’s deliberative body to fulfil one of its fundamental functions, and in a sense “outsource” some of the more contentious aspects of the debate.

So, what next?

The timing of the application is no accident. From Pristina’s vantage point, the recent expulsion of the Russian Federation from the CoE eliminates a major non-recognising objector at the Committee of Ministers. Russia’s departure will be seen as creating a political and numerical opportunity. Some may even see it as poetic irony that Pristina could potentially assume the seat vacated by Moscow. It does not mean an application process will be straightforward; it certainly will not be. Historically, membership processes have been anticipated, transparent and largely non-contentious. Accession to the European Cultural Convention has traditionally been the first step to membership. Not the case this time.

The procedure for accession typically involves a request to the Secretary General which is communicated to the Committee of Ministers (CM) via the incumbent CM Chair. The CM then takes a procedural decision under Statutory Resolution (51) 30 to seek an opinion of the Parliamentary Assembly of the CoE (PACE). In the case of the Republic of Montenegro for instance, it applied for membership on 6 June 2006 and the CM forwarded the application to the PACE for an opinion on 14 June 2006. The Bureau of the PACE then examines the request and nominates political and legal experts to assess the conformity of the applicant state with CoE fundamental principles. Once the relevant reports are prepared, considered and voted at PACE, a recommendation as to the suitability (or not) of the applicant for membership is returned to the CM. In the case of Montenegro, it joined the CoE on 11 May 2007, less than one year after application. It is highly unlikely the process will be so swift for Kosovo, though it is theoretically possible. Instead, Kosovo’s application is likely to face significant resistance at each procedural juncture, and unfortunately may become protracted.

Assuming the application is deemed admissible and is formally considered by the CM, one cannot rule out a procedural vote being required prior to a request to the PACE. This unusual step would require a qualified majority of two thirds of those present and voting, based on a majority of delegations attending. Failure to progress the application to the PACE would be damaging to the bid, but equally would create an institutional crisis within the CoE. In the context of the efforts to develop synergies and provide for co-ordinated action by the CoE’s two statutory organs, in recognition of their respective mandates the CM would come under intensive pressure if the PACE was deprived of the opportunity to have its say on a matter of such strategic and normative importance. One must avoid looking at Kosovo’s application to the CoE from a strictly procedural perspective and assuming success based on simplistic arithmetic. The ill-fated UNESCO bid of 2015 was a clear demonstration of the risks of such an approach. In that case, of the 142 countries that voted, 92 backed the motion, 50 voted against and a staggering 29 member states abstained, meaning Kosovo’s membership bid fell short by merely three votes.

If the request is received by PACE, the process of appointing rapporteurs may be challenging, as will the future substantive debates on the subject. Assuming an eventual positive recommendation by PACE, a substantive vote on membership will almost certainly be required. Again, it would require two thirds of those present and voting to vote in favour, based on a present majority of Member States. The voting thresholds are somewhat different at the level of the CM Deputies and Ministerial meetings, which no doubt will feature into any calculus around timing of an eventual vote.

In order to minimise the risk of lasting damaging being done to the CoE by forcing a show of hands, a preferred option would be to avoid a vote entirely and seek the explicit or tacit agreement (or disagreement) of Heads of State / Government at a future CoE Summit, which is now under active consideration.

Conclusion

Kosovo’s application for membership of the CoE is a very high-stakes endeavour, presenting significant risks and opportunities for all parties, including the CoE itself. Whatever the outcome, it will have dramatic and lasting legal and political implications. There appears to be compelling normative reasons for Kosovo to become the new 47th Member State of the CoE but one should not underestimate the intensity of opposing arguments. The likelihood of a prolonged, divisive political debate seems almost certain, and the law of unintended consequences is one that all parties must bear in mind.

On the face of it, there does not to appear to be an obvious reason why Kosovo’s application should not be considered by the Committee of Ministers in accordance with established procedure. Indeed, it may be problematic for the organisation to unreasonably delay its consideration. Whether Kosovo has the political capital to convince Member States that this request is a matter of urgency and importance remains to be seen, particularly given the consequences of the war in Ukraine which are rightly the main focus of CoE Member States. Clearly, lodging an application without intensive engagement with European capitals would be foolhardy, as bringing a major political conflict which has not been settled by consensus in advance into the CM chamber is precisely the last thing the CoE needs given how active the experience of the war in Ukraine and Nagorno-Karabkh are. Having said that, the Armenia-Azerbaijan accession precedent (see here and here) suggest that the mere existence of a conflict between two jurisdictions does not, in itself, prohibit accession to the CoE.

One cannot rule out the possibility that the request finds itself caught in political or administrative limbo. Opposition is likely to be fierce. Until such a time as there is a decision of the CM, the formal CoE – Kosovo relationship remains unchanged, but in practice Kosovo is now effectively a candidate Member State. This adds importance of CoE interventions including those led by the CoE Office based in Pristina, which arguably could be enhanced to the level of Liaison Office.

It is a galling fact that there are still regions in Europe where people do not have full access to the CoE’s monitoring and advisory architecture. The people living in Kosovo, and elsewhere, deserve the full rigours of the European human rights system, not for the purpose of consolidating statehood, but as a means of holding their authorities to account and thereby raising the standards of protection for everyone, especially minority communities. Kosovo’s application for membership of the CoE presents an opportunity to reconcile a major jurisdictional and operational anomaly in the ECHR area. The normative benefits seem clear, though the full spectrum of risks are not.

As Member States embark on a process of reflection about the next steps, it is worth recalling the aim of the Council of Europe is to achieve a greater unity in Europe. Whether unity or further division will be the outcome, only time will tell.

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Kushtrim Istrefi says

May 17, 2022

Dear Andrew,

This is an interesting and timely post. I do agree with many of your arguments.

However, you raised three possible arguments against Kosovo’s membership and I wanted to add my reflections and clarity on why those arguments do not stand.

When speaking about territorial integrity, it is important to look at the issue in the context of the CoE (otherwise one will have to bring the ICJ AO and more). In the context of CoE, Kosovo membership will not bring changes on the issue of territorial integrity because Serbia, according to ECtHR, has no territorial jurisdiction over Kosovo (see Azemi v Serbia, where the Court also refers to recognition of Kosovo, change of powers in the country etc, and contrast it with other cases where issues of territorial integrity were discussed). Hence, if Kosovo is to join CoE, its territory will be a new addition to the CoE legal space. Also, as you rightly mentioned, Kosovo is a member of the CoE partial agreements, namely the Venice Commission and Development Bank. In both instances Kosovo’s status has not presented an obstacle for membership, and most importantly its membership has not caused troubles in CoE.
In short, Kosovo is applying to join an organization where its people and territory are not covered through any other CoE Member State. This presents a shark contrast from any other contested territory in CoE where the Council and Court have maintained who the sovereign State is in relation to those territories (I am sharing below an article for more on this).

Regarding the dialogue: these are talks about improvement of relations between Serbia and Kosovo not of altering Kosovo’s status. This was made clear by all envoys involved in these talks. As we have seen in the past, CoE has used membership to enhance dialogue between States that had different political or territorial disagreements, rather than prevent them from joining the organization. CoE membership can only strengthen cooperation between states.

Concerning the precedent setting: I am not sure what that could mean. If another State recognized by more than 2/3 of Council applies for membership, then yes, Kosovo might set a precedent. Otherwise, I am simply not sure what precedent it could set. It is important to distinguish unlawful and unrecognized entities from a State that was not created in breach of international law and that is recognized by more than 2/3 of CoE, and supported by some non-recognisers. The analysis on precedent setting should be considered in the context of admission criteria, including the voting in each int organisation. Kosovo is already a member of numerous international institutions, so the Council of Europe will not be the first or last to consider Kosovo’s membership.

Lastly, Serbia through the Brussels agreements, has removed its structures in the country to be replaced by Kosovo institutions and Kosovo law. By blocking Kosovo’s membership to CoE, Serbia would effectively tell Serb citizens in Kosovo that they have to work and cooperate with Kosovo institutions and respect Kosovo law, but if their rights are being violated they cannot bring complaints against Kosovo institutions (or Serbia) before the ECtHR.

For anyone interested in my views on Kosovo's admission to CoE, here is an article which I wrote some time ago: https://brill.com/view/journals/rela/43/3/article-p255_255.xml?language=en

Andreas Zimmermann says

May 18, 2022

Dear colleague,
I fully concur with the idea that the people living in Kosovo deserve the full protection of the European human rights system, but that at the same time any steps taken to that effect should not, as you put it, be made "for the purpose of consolidating statehood, but rather as a means of holding their authorities to account and thereby raising the standards of protection for everyone, especially minority communities." If that were the case, and in order to avoid further divisions among member States of the CoE, including among EU member States, I was wondering why you have not considered the alternative of an associate membership for Kosovo as a European country under Art. 5 Statute CoE, as had happened with regard to the Saar territory in the early 1950es and where cases had indeed been brought against the Saar before the then European Commission for Human Rights, which would not only avoid deciding the divisive statehood, but would also been in line with the jurisprudence of the European Court of Justice which considered Kosovo a 'country' for purposes of EU law.
Further details may already be found here A. Zimmermann, 'Bringing Kosovo within the Reach of the European Convention on Human Rights: Disentangling the Convention and the status issue', in: S. Leutheusser-Schnarrenberger (ed.), Vom Recht auf Menschenwürde - 60 Jahre Europäische Menschenrechtskonvention (2013)
Andreas Zimmmermann

Andrew Forde says

May 18, 2022

Kushtrim: Thanks for your comments, all very helpful and they serve to reinforce my core arguments.

One broader point of clarification for the benefit of all readers: Under Article 20 c of the CoE Statute, Resolutions of the Committee under Articles 4 and 5 require a two-thirds majority of *all* of the representatives entitled to sit on the Committee, as opposed to just those present and voting. This is particularly the case for the Final Substantive vote on membership which would take place at the end of the process.

Andrew.

André de Hoogh says

May 19, 2022

In the contribution it is noted: "UNSCR 1244 noted the importance of the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act, and as resolutions adopted by the Security Council acting under Chapter VII of the Charter, are considered binding in accordance with Article 25 of the Charter, any violation of Serbia’s territorial integrity would be seen to represent a further breach of international law."

Unfortunately, matters are not as clear-cut as presented.

First, just because a resolution is adopted under Chapter VII does not make everything in it binding. In order to know whether a resolution imposes obligations on the member States, one needs to analyse the language used, in particular in order to determine whether the Council has adopted any decisions subject to Article 25 Charter. Mandatory language is therefore required.

Secondly, the reference to territorial integrity was not made in the operative paragraphs, but in the preamble where the Council reaffirmed the commitment of the member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia. Such language in the preamble cannot, without further, be seen to impose obligations.

Thirdly, one may of course note that the ICJ in its advisory opinion on Kosovo observed (para. 80), whether rightly or wrongly, that "the principle of territorial integrity is confined to the sphere of relations between States." As such, and since Serbia is a member of the Council of Europe, one should think that this ought to give members of the Council pause to consider before making decisions that infringe upon Serbia's territorial integrity. More so, when a sizable number of the Council's members had been involved in the bombing campaign that wrested control from Serbia over Kosovo, in effect a use of force against the territorial integrity of a State inconsistent with their obligations under article 2(4) of the Charter.