Protection Without Recognition: The Role of the Council of Europe in Strengthening Human Rights in Kosovo

Table of Contents: I. Introduction. – II. A brief (constitutional) history of Kosovo. – III. Human rights in Kosovo’s legal order. – III.1. Constitutional integration. – III.2. Judicial application. – IV. Standard-setting, monitoring and cooperation mechanisms. – IV.1. The Horizontal Facility. – IV.2. Other programmes and projects. – IV.3. From projects to change. – V. Conclusion and outlook.

Abstract: Areas of contested statehood present challenges to human rights on both a normative and a practical level. As areas of contested statehood face difficulties in acceding to human rights treaties and international organizations, more creative solutions have had to be found to ensure the protection of human rights in line with international standards. In recent years, Kosovo has been one of the most prominent examples of an area of contested statehood in Europe. This Article focuses on the role of one key international actor – the Council of Europe (CoE) – regarding the promotion of human rights in Kosovo. Combining doctrinal and empirical analysis, the Article discusses two key aspects of the relationship between the CoE and Kosovo: (1) the constitutionalisation and judicial application of the CoE’s human rights standards in Kosovo’s constitutional legal order; and (2) Kosovo’s interaction with the CoE’s human rights standard-setting, monitoring, and advisory mechanisms. This Article argues that these two aspects of the CoE’s and Kosovo’s relationship have been relatively impactful in embedding the CoE’s human rights standards in Kosovo. This has occurred to such an extent that Kosovo’s human rights system has now become inextricably tied to the Council of Europe’s human rights standards, despite not (yet) being a member of the CoE.

Keywords: constitutionalisation – contested statehood – Council of Europe – European Convention on Human Rights – European Court of Human Rights – Kosovo.

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European Papers, Vol. 9, 2024, No 1, pp. 287-309
ISSN 2499-8249 - doi: 10.15166/2499-8249/758

* M.Sc. Candidate in Criminology and Criminal Justice, University of Oxford, B.A. (hons) in Liberal Arts and Sciences: Global Challenges, Leiden University, jesse.loev@gmail.com.
** Assistant Professor of Comparative, EU and International Law, Leiden University, j.e.larik@luc.leidenuniv.nl.