A disturbing trend is emerging across EU member states: the externalisation of complex challenges, including societal issues, asylum policies, and waste management, to third countries. Despite persistent warnings about undemocratic practices and the potential for human rights violations, EU member states continue to explore new avenues for outsourcing their problems. While the recent agreement between Italy and Albania concerning asylum processing has garnered significant attention, the agreement between Kosovo and Denmark, which involves transferring convicted prisoners to Kosovo prisons, has thus far remained largely unnoticed.

The ramifications of this agreement extend far beyond the borders of Kosovo and Denmark. The agreement itself raises serious concerns about potential violations of human rights obligations. Moreover, it could set a dangerous precedent, encouraging other nations to outsource their responsibilities to less developed countries while disregarding international obligations. This practice undermines international law and could lead to a race to the bottom in terms of human rights protection.

The agreement between Kosovo and Denmark was ratified by the Assembly of the Republic of Kosovo on 23 May 2024 and entered into force a mere 15 days later. Its implementation, however, is yet to commence. The swiftness of this process raises urgent questions and concerns for both countries and the broader international community. These concerns will be explored in more detail below.

What is this agreement? 

In 2022, the Kingdom of Denmark and the Republic of Kosovo signed a treaty "on the use of the Correctional Facility in Gjilan for the purpose of the execution of Danish sentences." This agreement allows the Danish government to transfer up to 300 third-country nationals to serve their prison sentences in Kosovo. Upon completion of their sentence, the prisoners will be returned to Denmark for deportation to their countries of origin. 

Negotiations for this agreement spanned several years, reaching their final form under the Government of Prime Minister Kurti. The Minister of Justice in Kosovo, Ms. Haxhiu, stated that the agreement holds significant importance for Kosovo. She also noted that the agreement underwent renegotiation to address procedural steps related to the Law on International Agreements that were not adhered to during previous administrations' negotiations. The agreement is foreseen to initially remain in force for 5 years, with the possibility of automatically extending it for another five years - if no party objects to this. 

Under the terms of the agreement, Kosovo will receive €15,000,000 annually, disbursed in quarterly installments of €3,750,000.[1] Furthermore, upon the agreement's entry into force, Kosovo will receive an additional €5,000,000. This supplementary payment is designated to cover the transitional phase, which includes the renovation of the prison facility and the staffing adjustments necessary to meet Danish standards.[2] According to the minister, the agreement is economically advantageous for Kosovo. The €210,000,000 acquired through the agreement will be dedicated to capital investments, particularly for renewable energy projects. Furthermore, the minister clarified that implementing this agreement would enable Kosovo's Correctional Service to advance its capacities, conditions, and physical and professional infrastructure. 

The agreement stipulates that the prison and prisoners will be administered under Danish jurisdiction. In contrast, the guards from Kosovo will be bound by Kosovar law. A governor will be in charge of managing the prison[3] accompanied by the rest of the staff sent by Denmark to help in the management of the facilities. The governor's work will adhere to the Danish legal framework, including its international obligations. 

What are the main challenges? 

The existence and implementation of this agreement comes with many challenges and issues which cannot be left unaddressed. 

Possibility for Violating International Law and Standards 

The agreement raises significant concerns regarding international standards and the ethical implications of outsourcing responsibilities to a third country. Although this agreement has been presented as a pragmatic solution from both parties, it is worth noting that the agreement has the potential to undermine fundamental human rights and standards. A primary concern is the possibility of violating international standards regarding the treatment of prisoners. These standards, enshrined in conventions like the UN Convention Against Torture and the European Convention on Human Rights, guarantee basic rights such as non-discrimination, the right to family life, and the prevention of torture and ill-treatment. 

Transfering prisoners to Kosovo, which has a different legal system and most likely lower human right standards, makes it highly questionable whether Denmark will be able to ensure that these rights are fully upheld. This is especially worrying given that there are reports of abuse and corruption within the Kosovar prison system. Furthermore, it is unclear how Denmark will ensure that these rights and standards are respected. While the agreement stipulates that the well-being and management of the prisoners remain within Denmark's jurisdiction, the distance and differing legal frameworks between the two countries are challenging for monitoring and oversight. 

While the agreement allows monitoring visits from the Danish Ombudsman and European Committee for Prevention of Torture (CPT), it does not allow such monitoring rights to the local monitoring bodies in Kosovo. This is worrying because, as stated by the agreement, the correcting officers serving in the prison will be Kosovars and bound by Kosovo’s law. The complexity of this arrangement in itself creates a legal vacuum on the responsibilities if such a violation occurs. 

Lastly, the agreement in itself is a representation of the violation of the non-discrimination standard and the principle of equal treatment of prisoners. The fact that the agreement focuses on transferring foreign nationals slated for deportation adds another layer of concern. This raises questions about discrimination and the unequal treatment of prisoners in Denmark based on their nationality. It also highlights the potential for these individuals to be further marginalised and isolated with limited access to support networks and legal assistance in a country with which they have no ties whatsoever. 

Other Practical Challenges 

As mentioned above, transferring prisoners to a facility thousands of kilometres away from their families, lawyers, and support networks creates significant logistical and emotional hurdles. As a result of this distance, personal relationships and connections will become hard to maintain, thus leading to an isolation of the prisoners and hindering any rehabilitation efforts. Furthermore, this can be exacerbated due to the language barrier that the prisoners might face while residing in a prison in Kosovo. First, the language barrier will impact their ability to access legal assistance, and second, their ability to communicate with the Kosovar authorities who are foreseen to work in the prison, and most likely will not have the necessary language skills to fully engage and cooperate with prisoners. Such issues were present in other cases of outsourcing prisoners in other countries. Notable examples include (i) the Netherlands and Belgium agreement and (ii) the Norway and Netherlands agreement, where in both cases, concerns regarding the barriers related to language, culture and isolation were present. 

Another issue remains that Kosovo’s prison system lacks the human capacity and the infrastructure to accommodate 300 more inmates on top of the existing prisoners. Similarly, no concrete plans have been proposed for the transfer of the Kosovar prisoners from the prison in Gjilan to other facilities within Kosovo. Leasing the prison without a proper relocation plan creates another concern among the prison system in Kosovo, which is its ability to accommodate its prisoners while also maintaining their housing standards and rights. Additionally, while the opportunity to renovate the Gjilani prison (with the €5,000,000 provided by Demnark) is promoted as something beneficial, if Kosovo’s government does not follow similar upgrades with other prisons in Kosovo, once the agreement is concluded, it opens the possibility for discrimination among its prisoners, as the ones who would be held at Gjilan prison would have better living conditions - close to the Danish standards. 

Additionally, the lack of public consultation during the negotiation of this agreement is a concern. While the Ministry of Justice was involved in the negotiations with the Danish counterparts, the agreement itself was never subject to wider public scrutiny or input from civil society organisations (CSOs) and other stakeholders in Kosovo. Although such consultations are not foreseen within the law on international agreements, given the impact of this agreement, such consultations with CSO’s and other stakeholders should have been held. This raises questions about transparency and adherence to good governance standards, which Kosovo subscribes to.

Why is this important? 

The agreement between Kosovo and Denmark is more than just a mere bilateral agreement; it is a symptom of a broader increasing phenomenon in European policymaking. The increase of externalisation of complex issues in EU member states towards non-EU countries raises serious concerns about the erosion of human rights standards and the potential for exploitation. 

This agreement particularly raises questions about the outsourcing limit and how far EU member states are willing to go. While outsourcing presents a convenient solution for some, it cannot absolve countries of their international obligations. The transfer of prisoners to a country with a completely different legal system and potentially lower standards of human rights raises serious questions about accountability under this agreement. 

If the implementation of the agreement is successful, it could encourage other countries to follow a similar approach on their issues, thus leading to a ‘race’ to the bottom in terms of human rights protection. After all, this agreement follows the same logic as the agreements that were implemented before - e.g., the agreement between Belgium and the Netherlands. To avoid human rights violations, it is crucial to ensure that there is a higher transparency and accountability in the implementation of the agreement - certainly higher than we have seen during its negotiations.

For the Western Balkans, the agreement sheds light on the vulnerability of the region in becoming a dumping ground for the problems of other countries. A similar practice can be seen with the recent agreement between Italy and Albania. However, as the countries in the region are already in fragile situations, continuously affected by legacies of conflict and ongoing statebuilding efforts, they must continue to protect their sovereignty, improve their human rights standards and uphold democratic values. These are also serious requirements in their path towards EU integration, and such agreements and practices could potentially strain the progress they have made so far. 

Understanding and scrutinising this agreement is particularly important for Kosovo. The agreement could have significant implications for Kosovo’s justice system and human rights record. Kosovo’s justice system is relatively new and still undergoing significant reforms with the aim of improving and strengthening it. The large influx of foreign prisoners, as well as the application of jurisdiction of another country in its facilities, could strain the capacities of this system and potentially lead to human rights abuses. The impact of such human rights abuses could push the country further away from its consolidation of the system and its path towards EU integration.

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1. Kosovo - Denmark Treaty. Article 32(1)

2. Ibid. Article 32(3) and (4) 

3. Ibid. Article 13(1)

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