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In 2014, Kosovo became a member of two Council of Europe (CoE) partial agreements: on the Development Bank and on the European Commission for Democracy through Law (the Venice Commission). More recently, the Government of Kosovo expressed an interest in joining the CoE. This article examines, in the context of Kosovo’s contested statehood, the conditions and procedure for Kosovo’s possible admission to the CoE and describes, in the form of an early warning, the key legal and policy issues that could arise in this process. Insofar as membership criteria are concerned, the article examines Kosovo’s ability to exercise jurisdiction over its territory. In this regard, the case of Azemi v. Serbia before the European Court of Human Rights (ECtHR or the Strasbourg Court) and the EU-facilitated agreements between Belgrade and Pristina are considered. In addition, the article argues that that the direct applicability of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the ECtHR’s case law in Kosovo are evidence of Kosovo’s commitment to fulfilling one of the essential membership criteria. Regarding Kosovo’s prospects for admission, the article submits that the recognition of Kosovo by more than two-thirds of the Council’s member states is an indicator that, in principle, Kosovo could ensure the votes necessary for admission. However, it also highlights the specific challenges Kosovo may encounter in its membership path due to complex admission procedures within the CoE Committee of Ministers and the composition of the members of the CoE Parliamentary Assembly (PACE).

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This chapter examines the policy effects of decisions by European courts on Security Council targeted sanctions as regards the two concerns that triggered their judicial responses, namely due process reform and genuine realization of human rights. This consequentialist assessment argues that a more Herculean form of judicial activism, as seen in Kadi II before the Court of Justice of the European Union (CJEU), cannot alone uphold human rights and may be counterproductive to the Security Council reform process. This submission suggests that a form of judicial restraint as exercised by the European Court of Human Rights (ECtHR or Strasbourg Court) in Al-Dulimi may prove to be more effective. In particular, the arbitrariness test introduced by the Strasbourg Court in that case with regard to Security Council measures may achieve two policy objectives. First, through a timely review by national courts of arbitrary listings it may encourage the realization of human rights. Second, by demanding that states secure appropriate evidence for listings, it may revitalize reform of the sanction decision-making process. These effects of Al-Dulimi are examined in the context of earlier engagement by national authorities with Security Council measures, including in the Sayadi and Vinck and Nada cases. Despite these consequences, this chapter warns of some limitations inherent in the approach applied by the Strasbourg Court in cases where national executives turn out to be uncooperative.

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