By Bárbara Matias askes why, despite the fact that the European Union appears to be Kosovo’s greatest supporter, some obstructions in the relationship still are unresolved.
The self-proclaimed Republic of Kosovo has long advocated for international recognition and European Union (EU) membership. Presently recognised by 114 of 193 United Nations (UN) member-states, and 23 of 28 EU member-states, this lack of consensus hinders any prospect of full membership and, furthermore, violates the human rights of the Kosovar population. In this article I will examine how the non-recognition of Kosovo as independent obstructs EU-Kosovo relations and international human rights law safeguards, such as the right to freedom of movement by means of inequitable visa restrictions.
Kosovo – an Ottoman region, a Yugoslav Republic and an independent nation
A geopolitical hub for scholars, the Republic of Kosovo is small in size but plentiful in history. A former territory of the Byzantine and Ottoman Empires, the region of Kosovo has for long assimilated Turkish, Albanian and Serb cultures. Its main tie to the Ottoman Empire remains, to this day, the Muslim religion, as the vast majority (95.6%) of its population identify as Muslim. In modern history, the unsustainable ethnic divide between ethnic Albanians and ethnic Serbs reached a tipping point after the breakup of Yugoslavia in the 1990s, which incited the Kosovar Albanian separatist forces and eventually culminating in the Kosovo War of 1998-99. It is estimated that, by May 1999, 90% of the population of Kosovo displaced under the ethnic cleansing campaign of President Slobodan Milosevic.
Following the NATO intervention in Bosnia and Herzegovina at the start of the decade, this explicit conflict in the wider of the Yugoslav Wars dictated NATO’s second military operation: Operation Allied Force led to the UN Security Council Resolution 1244 of 1999. Kosovo was established as a UN protectorate with acting influence of the Kosovo Force (KFOR), a NATO-led peacekeeping force. The resolution further specifically names the European Union as a major player in the economic development and stabilisation of the region.
In 17 February 2008, Kosovo unilaterally declared its independence – ‘’We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state’’, as reads Article 1 of the Declaration of Independence -, a political move which has long been disputed. It prompted a 2010 ruling by the International Court of Justice asserting that “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law or Security Council resolution 1244″[1]. Yet the lack of recognition consensus has objectively obstructed Kosovo’s full integration in the international community and eventual membership in international organisations.
The ambiguity in EU-Kosovo relations
The EU is Kosovo’s biggest donor and trading partner, as well as a very prominent diplomatic presence. 14 of the 21 countries which have opened embassies in Pristina are EU member-states, Kosovo has received over €2.3 billion in EU assistance and almost €1 billion in support to international presence since 1999, while 42.2 percent of imports are from the EU, while 32.6 percent of exports are to the EU.
Economic and political efforts notwithstanding, Kosovo-EU relations are not foolproof. Unlike neighbouring Balkan countries Albania, Macedonia, Montenegro and Serbia, Kosovo is not an official candidate country for future enlargement. Five member-states – Greece, Romania, Spain, Cyprus and Slovakia – do not recognise Kosovo’s independence, therein impeding official accession. The Republic of Kosovo is alternatively labelled as a “potential candidate”.
For these reasons, relations between the European Union and Kosovo have been marked by ambiguity. While ground efforts are vast, judicial concessions oftentimes contradict stabilisation efforts. Taking the SAA agreement with Kosovo into consideration, it was the first contractual agreement between the EU and Kosovo, signalling a raised degree of relations from preparatory to contractual, in this instance focusing on trade and tariffs as a means to prepare the Kosovar market to enter the tax-free EU market. Yet the EU Special Representative for Kosovo was quick to remind that unlike SAA with other countries of the region, this one will be exclusively signed by the EU as a legal entity. For this reason, the name of the SAA agreement with Kosovo is Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one Part, and Kosovo, of the Other Part, and that with Serbia is Stabilisation and Association Agreement Between the European Communities and their Member States of the one part, and the Republic of Serbia, of the Other Part. In fact, Article 2 further asserts that ‘’None of the terms, wording or definitions used in this Agreement, including the Annexes and Protocols thereto, constitute recognition of Kosovo by the EU as an independent State nor does it constitute recognition by individual Member-States of Kosovo in that capacity where they have not taken such a step.’’
International human rights limbo
Kosovo’s lack of membership in international organisations leaves its citizens in international legal limbo: as the international order established with the 1648 Peace of Westphalia dictates, sovereign states are the main duty-holders of the rights of citizens in international human rights law. For Kosovo, this has come to represent a grave obstacle, with it still not being a fully recognised sovereign state in international law. This is where international human rights law (IHRL) come into play. As Louis Henkin, commonly known as the father of the modern human rights project, highlighted, the human rights discourse “has rooted itself entirely in human dignity and finds its complete justification in that idea.” Human rights focus on individuals solely on the basis of his or her humanity, granting unwavering safeguards that protect a dignified livelihood for all.
Therefore, the fundamental idea behind the human rights movement is that Kosovars’ rights are based on their dignity and their humanity, and not on their belonging to a sovereign state or international organisation.
The right to freedom of movement is one of the most important rights in IHRL, as established in Article 13 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Civil and Political Rights. It determines “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence; Everyone shall be free to leave any country, including his own.” The treaty also determines that “the above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others.” The case of Kosovo falls into the “restriction provided by law” category of the Article. This is manifested in the absence of visa liberalisation between Kosovo and the EU, despite initiatives by some Members of European Parliament (MEPs).
The visa liberalisation issue
All Western Balkans – Albania, Bosnia, Macedonia, Montenegro and Serbia – have enjoyed visa-free travel to the Schengen Area since 2010, a perk also shared by other countries such as Thailand, or most recently, in May 2017, Ukraine. Kosovo does not enjoy visa-free travel to the Schengen Area, but must instead adhere to strict visa policies which limit citizens’ agency and directly obstruct their freedom of movement.
Talks of EU visa liberalisation for Kosovo started in 2012 with a road map by the EU Commission concerning a “comprehensive list of reforms that Kosovo will be requested to implement to fulfil requirements related to the freedom of movement” – the requirements ranged from policies against corruption and organised crime, to border demarcation with Montenegro. Former Foreign Minister Hashim Thaci warned that “absurd and deliberate delays not only encourage extremism in the country but will also increase frustration.” As a means to also contravene emerging Eurosceptic sentiments in light of this political bureaucracy, last year Austrian MEP Ulrike Lunacek initiated an EU Parliament resolution that pushed for a speedy visa liberalisation, looking to ensure “the independent Kosovar state progresses further with reforms on the rule of law and the economy.” The resolution on Kosovo was passed by the MEPs with 37 votes to 12, with 9 abstentions.
Visa liberalisation between Kosovo and the EU is therefore tied to a more equitable freedom of movement for Kosovars, one that would put them at the same, rightful level as its neighbouring countries and other EU-friendly nations around the globe.
Human rights and the EU-Kosovo visa liberalisation
Despite the Kosovar self-declaration of independence having been deemed legal by the International Court of Justice, the country remains an outlier in international law and solidarity mechanisms. Adopting a human rights vantage point, the delayed visa liberalisation process displays how international human rights law is unfairly attended to in Kosovo. The fact that Kosovo is the only European country, let alone the only official potential candidate, that does not enjoy visa-free Schengen travel is an example of how power politics can take human rights hostage: domestic state interests have dictated the shun of Kosovo from proper integration and freedom of movement.
Visa restrictions remain fully in place for Kosovo certainly not because of a lack of historical, geographical, cultural and even political kinship to the EU, but rather strategic state policies that prioritise national reticence over communal solidarity and human rights. The fact that such a “restriction provided by law” is rooted in single-minded domestic interests and not actual law impediments makes this a human rights issue — the right to citizens’ freedom of movement is being obstructed not only through tight visa restrictions, but also recurrent problems on obtaining one. Just one recent prominent example featured DokuFest director, Eroll Bilibani, who was denied a visa and was unable to attend Berlinale, one of Europe’s most celebrated film festivals.
Ultimately, the status of Kosovo may have yet to be resolved, but allowing unfair treatment and human rights interferences to keep occurring as a side effect can, and should, be prevented.
Human rights are indivisible and inalienable. They are granted on the basis of humanity, in that “all human beings are born free and equal in dignity and rights.” In Kosovo, they are flagrantly violated, which sets off a snowball effect that further obstructs linked human rights. This has triggered a political back and forth game that has let visa liberalisation between the EU and Kosovo mature into an empty promise. It is not only unfair to the free agency of the citizens of Kosovo, but also unjustifiable in law in light of the International Court of Justice’s positive advisory decision.
As a Human Rights scholar, my hope is that the Republic of Kosovo is in all respects recognised by the international community and empowered in its exoneration from isolation towards the respect of human rights. As a European Union citizen, my hope is that EU-Kosovo relations progress towards recognition by all member-states and, much like the Kosovar Declaration of Independence itself states, Kosovo and its young people will be able to play a role in “advancing a common European future.”
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