Accession to the Council of Europe: trop de zèle!

Our battle in the KiE will leave much to witness consistently and indefinitely about our being as sovereign and independent. If this normalisation of the reports with Serbia means Kosovo's approach to Serbia through formal ties, it will largely depend on the constitutional psychology of the Serb municipality.

Kosovo accession, but not constitutional name

Days earlier, one of the Kosovo authorities said Kosovo's admission to the Council of Europe ( It's becoming a country, not a country. The truth is, in fact, different: accession is being made just as a country, not by the constitutional name of the state of Kosovo, but simply like Kosovo, and by Resolution 1244 of the United Nations Organisation Security Council ( KS The UN. What characterises Bakoyannis's Kosovo report (“Report”), which in Paris on March 27, 2024, approved the Parliamentary Assembly's Committee for Political Affairs and Democracy (AP) ) consists of addressing Kosovo as an unprecedented case, for security reasons. For this very reason, the report says Kosovo can be accepted exclusively by its name, according to Resolution 1244, thus not by its constitutional name, not as a sovereign and independent state, respectively. On one occasion Sui Geners, which could not serve as a precedent for other session situations as a form of self-rule law realisation, meaning the establishment of sovereign and independent state, Kosovo now turns to its own opposite, as an unprecedented case for the purposes of accession to the KiE. This means that the accession in the KiE is done for specific and specific purposes, which are provided in the Report, purposes that primarily concern the protection of the Serb community's rights, the reduction of the situation and the normalisation of relations between Kosovo and Serbia”. To achieve these goals, the report has recommended the immediate activating of the monitoring mechanism under the AP Resolution 1115 (1997). To date, every vote on membership in the KiE has been made by a vote on the level of deputy ministers, except for the case of Armenia and Azerbaijan, when the Committee of Ministers has decided at the level of ministers. In all cases, without exception, admissions were made by unanimous vote. In Kosovo's case, more likely, this will happen with the two-thirds vote of the 46 members of the KiE. Following the Russian barbarous aggression against Ukraine, which has opened the doors for Kosovo's accession to the KiE because Russia has ruled itself out from its influence on European and international security architecture with little thought and defeat, Kosovo has been able to start the path to membership as a serious and responsible state of the international community, not running against its civilian citizens in the north, entirely for profiting and preserving a handful of votes. With a more prudent and mature policy, Kosovo would have isolated Serbia on its journey to the CoE, not vice versa.

In law and international relations there is a clear distinction between international subjectivity and state or citizenship (ang.): Statehood). This last one represents the most standard, classic form of international subjectivity. The subjectivity itself, meanwhile, involves other forms besides being a state. We're not talking here just about international organizations, rebels and other non-state actors, but situations where international order has created status and positions that have enjoyed international legal subjectivity and are considered states for specific purposes and situations. In other words, they have been subject to international law, because international judicial order has recognized them with an amount of rights and obligations in relation to other subjects. Because some subjects of international law exist, international subjectivity is not sufficient in itself to be a state of international law. In the case known as Reparations (1949), the International Court of Justice (GJND) has expressed the opinion that today prevails, under which there is objective judicial subjectivity, recognised by general international law, and international subjectivity accepted only by a group of states. A third understanding of the term state in international law is the one built for specific purposes, which includes the Kosovo case in relation to the KiE. In these cases, a specific technical term for the given entity is used by the treaty or statute, and that technical term is taken as a reference point. To illustrate this, there are abundant international practices. The Australian state of New South Wales, which is not a state of international law, in a US judicial decision in 1932 has been treated as one for the purposes of the law on double taxation. The same has happened in 1934 in another case concerning the American state tax law Oregon etc. And, vice versa, there have been cases when foreign countries, for the purposes of implementing family laws, by American courts are considered US member states. There are other goals for which specific entities are considered states in the sense of international law. They've had to do with citizenship but also with other purposes. mandates “A” within the UN are considered states exclusively for the purposes of citizenship. Andora before 1993, when it is not considered a state of international law, the Holy See before the Lateran Accords (1870-1929), British before the creation of modern India and Pakistan (1919-1947), are considered states for the purposes of citizenship and specific international relations. Belarus and Ukraine, during the Cold War, are considered states for their UN membership goals. Earlier the Free City of Dansing is considered a state for the purposes of being a party in the International Court of Justice statue.

The Practical Consistent Effects

If Kosovo is not recognised as a sovereign and independent state, but as a country meaning UN Resolution 1244, so not by its constitutional name, then the question is whether it has any practical consequences, or is about an approach that does not convey any message to the state of Kosovo and represents a separate purpose. To answer this dilemma, we need to start from the fact that the state enjoys plenaary competence in international law, except when there is something else from text and context. Five internationally recognised rules stem from this premiere, which determine the state's position in international order. Under the first rule, it is considered that the state possesses the capacity for linking international treaties and agreements and undertaking any act on the international plan. According to the second, the state is independent of any other state and has exclusive competence in domestic relations, except restrictions imposed by international law. According to the third, in principle, the state cannot submit to the jurisdiction of an international trial or mechanism against its will. According to the fourth, in a formal way all states are equal. According to the latter, no deviation from these rules can be confirmed: In case of doubt, the rule that should be set in favour of freedom of state action is valid.

There is no doubt that, for the goals of membership in the KiE, the report, but also the extremely professional elaboration of the recommendations of the Eminent lawyers (Recommissions), who serve as the basis for decision making in the AP and in the Committee of Ministers, regard Kosovo as a country, not as a sovereign and independent state. The expression “every European state”, from Article 4 of the KiE Stattuti (Statui) has been closely interpreted, using the technical term for Kosovo based on the KS Resolution 1244, not its constitutional name. This interpretation is dictated, as released by the Report, but also by the recommendations, for security reasons and for the purpose of preserving Kosovo's stability and transformation into a regional stability agency. In other countries' accession cases, without exception, goals from Article 1 of the Statut have been taken into account, which have to do with preserving common heritage and achieving economic and social progress. In the case of Kosovo, always judged according to Report and References, these goals are achieved through Kosovo's view as the key factor in ensuring stability. This dimension of security that permeates the entire essence of these two documents, as well as Kosovo's own accession vote in the KiE, has given focus to the assessment of events and actions of Kosovo's central government authorities over the past two years. Continued encouragement to the north by central power, through special forces, not regular police, has made Kosovo Serb civilians feel endangered and humiliated, bringing the country's security waste point to the top. The report clearly states that there is real danger from a violent conflict. The danger is not to blame on Serbian security structures, nor on the Serbian state, but on the irresponsible actions of Kosovo's central power against the Serb civilian population. These actions have served as evidence of rapporteur Bakoyannis, that there is a gap in Kosovo between standards and their effective implementation, which lays out the need for improving the protection of non-US communities, climate creation that leads to trust, reconciliation and inclusion. As seen, therefore, the key word in Report is security, creating security in Kosovo for all citizens and the country as a whole. This security dimension has served as a drought for building the chance for Kosovo, as the report says, “to continue progress in strengthening human rights, democracy and rule of law, as well as addressing challenges and problems that are concern of the Council”.

Kosovo will be strictly monitored, precisely to see whether it is implementing the pledges taken, which should lead to the country's substantial progress in the areas of minority communities' rights in the first place, but also human rights in general, in the rule of law and addressing the remaining problems, in the first order the formation of the Serb municipal community, respectively of political-territorial autonomy of local Serbs. Under the KiE internal rules, monitoring must occur and in practice it has always happened six months after a state's admission to the KiE. In Kosovo's case, meanwhile, this should happen immediately and simultaneously with its admission to the KiE. It is, therefore, the testing of Kosovo's citizenship: the country has not been accepted in the KiE as a state, but as a country that needs to become a state by reshaping along the KiE standards, which means by meeting gaps between standards of norms and their effective implementation. Not enough continuous trumpeting that Kosovo has the highest standards for human rights: implementation of standards must be effective. As well as when it is considered that it has come to their effective implementation, it is not measured and defined by Kosovo institutions, but by those of the KiE, in the first order by the European Court of Human Rights. Evidence that we are a state is an endless process that begins our accession day in the KiE. We hope it will be in May of this year, as planned. However, Kosovo will be remembered as the only country to have adopted to the KiE for security reasons and for the purpose of testing its own state as a result of turning the country into a security issue for the past two years.

Kosovo will be in the European security agenda as a problem. The solution to security problems, as the history of international relations shows, has little consideration for the sovereignty of states: their solution print and the considerations never-financed on state sovereignty take place. That solution, not rarely, requires the sacrifice of sovereignty, transforming it into various forms and forms. We must see what transformation in Kosovo's sovereignty will cause normalisation of reports with Serbia, which is a condition Don't worry. For our membership in the KiE. Our battle in the KiE will be to witness consistently and indefinitely our being as sovereign and independent states. If this normalisation of the reports with Serbia means Kosovo's approach to Serbia through formal ties, it will largely depend on the constitutional psychology of the Serb municipality. If this autonomous Serbian structure will serve as a tool for achieving the next goal of defunctness and failure of the Kosovo citizenship project, then efforts to prove Kosovo's sovereign and independent state will fail.

(Autori is the first president of the Constitutional Court and professor of law and international relations)