On January 17, 2023, the Grand Chamber of the Court of Justice of the European Union (CJEU) delivered its judgments in case C-632/20, P Spain v. Commission (Kosovo), ruling that notwithstanding the European Union's non-recognition of Kosovo as a state, Kosovo may participate in an EU agency, namely the Body of European Regulators for Electronic Communications (BEREC). The judgment is significant for several reasons: (1) for the European Union's growing engagement with non-recognized territorial entities since it clarifies the meaning of the concept of “third country” and confirms that such entities may participate in EU agencies; (2) for the European Union's engagement with Kosovo—particularly in the light of Kosovo's 2022 bid for EU membership; and (3) more broadly, in the context of the burgeoning debate regarding the CJEU's approach to international law.

This contribution focuses on the Court of Justice of the European Union (Court or CJEU) reliance on international law in cases involving economic agreements covering occupied territories. In its earlier case law, the Court adopted a formalistic approach by ignoring the broader international legal framework of the dispute in an effort to achieve conformity with international law, while at the same time avoiding being drawn into political storms. The article continues by identifying an even more worrisome trend in the Court’s latest judgments in the Front Polisario and Western Sahara Campaign UK cases. In these two cases the Court showed its willingness to stretch the international rules of treaty interpretation to a breaking point in order to avoid pronouncing on the politically sensitive question of the de facto application of the EU’s agreements with Morocco in the territory of Western Sahara. The article concludes by asserting that the Court’s line of argumentation brings another dimension to the Völkerrechtsfreundlichkeit debate. The classical, binary understanding of the Court’s approach as ‘open/hostile’ to international law only provides us with a partial picture of how international law was actually used in these cases. The Court’s apparent willingness to rely on international law as a heuristic device to reinforce an outcome that radically departs from the logic and structure of international law and international legal argumentation requires a more in-depth engagement with both the content of the international law rules invoked in those judgments and with the Court’s use of such rules.

In light of the uncertainty surrounding recent unilateral declarations of independence, this Article purports to re-visit the question of their legal nature under international law. The Article shows that the International Court of Justice's (ICJ) judgment in the Kosovo advisory opinion (hereafter referred to as the Kosovo Opinion) is of little assistance in establishing whether and to what extent such declarations fall within the ambit of international law. The Article proceeds to examine claims that unilateral declarations of independence are regulated—entirely or partly—by international law and argues that these claims are ill-founded on multiple grounds. The Article asserts that international law is legally neutral towards the claims—a proposition in accord with both the factual nature of the process of state formation in international law and with the relevant practice.