Council of Europe: Kosovo ante portas?

Since declaring independence in 2008, Kosovo has made the recognition of its statehood and the related issue of its membership in international organizations a priority of its foreign policy. After the Parliamentary Assembly of the Council of Europe recommended on 16 April 2024, by 131 votes in favour, 29 against and 11 abstentions, that Kosovo be invited to become a member of the Council of Europe, a final decision on this might soon be taken by the Committee of Ministers of the Council of Europe even if it seems that some member States of the Council of Europe France have requested the postponement of the decision on the admission of Kosovo in the organization.

Any final decision on the question of admission must in any event be made by a 2/3 majority of the governments of the by now 46 member States of the Council of Europe represented in the Committee of Ministers. From the point of view of the Parliamentary Assembly, one, if not the main objective of such an admission to the organisation is that all persons under the jurisdiction of Kosovo should have access to the European Court of Human Rights.

According to Article 4 of the Statute of the Council of Europe, the statutory prerequisite for admission to the Council of Europe is however that the candidate country is a European State. Yet, it is well known that the member States of the Council of Europe still do not share a uniform position with regard to Kosovo’s statehood. While 34 of them have recognized Kosovo as an independent and sovereign State, the remaining 12, including Serbia, Slovakia, Romania, Armenia, Azerbaijan, Bosnia and Herzegovina, Cyprus, Georgia, Greece, Moldova, Spain and Ukraine, and thus still five EU member States, have not (yet) done so. On the one hand, assuming that all non-recognizing member States of the Council of Europe vote against the admission of Kosovo, this means that the necessary 2/3 majority would only be achieved by a relatively narrow margin. What is more politically significant, however, is that the EU would run the risk of not speaking with one voice on the matter. It is true that the non-recognizing member States of the Council of Europe could make it clear that their simultaneous membership of the Council of Europe with Kosovo (especially if they themselves voted against the admission of Kosovo) should not be seen as recognition of Kosovo as a State. Nevertheless, from their point of view, at least the political signal towards recognizing Kosovo’s statehood would be clear.

This raises the question of whether the important goal of bringing the population of Kosovo under the human rights umbrella of the ECHR can be achieved without at the same time prejudicing the status issue, which, as mentioned above, remains controversial. One such possible path, which has apparently been largely ignored to date, could be for Kosovo to become an associate member of the Council of Europe.

The legal basis for such a possibility can be found in Art. 5 of the Statute of the Council of Europe, which provides that ‘a European country (…) may be invited by the Committee of Ministers to become an associate member of the Council of Europe’. Neither Article 5 of the Statute of the Council of Europe nor the Statute itself contains a definition of the term ‘country’ used there. However, the Statute of the Council of Europe clearly juxtaposes ‘States’ on the one hand (in its Art. 4) and ‘countries’ (in its Art. 5) on the other. This seems to indicate that  those entities can become associate members of the Council of Europe which either do not have statehood or whose statehood is not generally recognized, or finally, if their legal status under international law is a special one despite their statehood.

This is confirmed by the Council of Europe’s own practice with regard to Art. 5. The associate memberships of the Federal Republic of Germany from 1950 to 1951 (which at that time was still subject to the prerogatives of the three Western occupying powers) and the Saar territory (which at that time was still separated from Germany) from 1950 to 1957 are pertinent examples in that regard. Once admitted as an associate member, such an associate member has the same rights and obligations as the full members of the Council of Europe, with the exception of membership in the Committee of Ministers. In particular, such associate members may be represented in the Parliamentary Assembly, but may also be granted other rights and privileges.

In particular, the practice regarding the Saar territory could be exemplary in this case. In 1949, the Committee of Ministers debated the possible admission of the Saar territory to the Council of Europe, but the status of the Saar territory under international law was disputed, as the Saar (like Kosovo now) claimed to be a State with the support of France, while several other member States of the Cluncil of Europe (as well as  Germany) rejected such a claim. Finally, the Committee of Ministers reached a decision on the admission of the Saar territory as an associate member of the Council of Europe, which, however, deliberately avoided any definition of the Saar’s status under international law. Its rights as an associate member of the Council of Europe included, in addition to the right to be represented by three members in what was then still called the Consultative Assembly, also the authorization to ‘join the Committee [of Ministers] in an advisory capacity in the examination of certain questions (…)’ and to participate in its working groups at the invitation of the Committee of Ministers.

It is particularly significant that the Saar territory ratified the ECHR at the same time as it became an associate member of the Council of Europe and remained a party to the ECHR until its accession to the Federal Republic of Germany in 1957 in accordance with the then applicable Article 23 of the Basic Law. Accordingly, the Saarland had also nominated a member for the then existing European Commission for Human Rights, Ms. Irmgard Fuest, of which she was a member from 1954-56.

In view of these almost striking similarities between the then Saar territory and today’s Kosovo, it is worth considering whether the Saarland model could, or maybe even should, be transferred to Kosovo, especially since, as mentioned above, States such as previously the Federal Republic of Germany can also become an associate member of the Council of Europe. This approach would quite elegantly enable the Committee of Ministers to postpone the legal status issue until a final and consensual solution to the question of Kosovo’s statehood has been found and to thereby by the same token avoid the revelation of an internal dispute within the European Union. At the same time, however, the European Court of Human Rights would be enabled to comprehensively scrutinize the actions of the Kosovo authorities on the basis of the standards of the ECHR.

It thus seems that the complicated and complex situation in Kosovo, just like that of the Saar territory at the time, can, and should clearly be, regarded as amounting to ‘special circumstances’ within the meaning of Article 5 of the Statute of the Council of Europe, especially since there should be no doubt that Kosovo is in any case to be considered a European country, as required by Article 5 of the Statute of the Council of Europe for such associate members of the Council of Europe.