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International courts (ICs) have found themselves dealing with issues that are ‘political’ in nature. This paper discusses the techniques of avoidance ICs have developed to navigate such highly political or sensitive issues. The first part discusses some of the key rationales for avoidance. Drawing on the discussion of the political question doctrine in US constitutional law, it shows how ICs may justify avoidance on both principled and pragmatic grounds. It then discusses the different types of avoidance strategies employed by ICs, based on examples from the Court of Justice of the European Union, the International Court of Justice and the East African Court of Justice. ICs are rarely upfront about avoidance strategies. Rather, ICs tend to avoid cases in a more subtle fashion, relying on procedural rules to exclude a case, or by resolving the dispute in a way that avoids the most politically sensitive questions and controversies.

There is one thing that lawyers - from both European Union and international law perspectives – can agree on: the EU is not a state. Yet the EU is now treated as a state-like entity in a variety of legal settings. Through concluding and participating in international treaties, through the CJEU interpreting and applying international agreements; and through dispute settlement bodies accepting the multiple nature of EU law, the Union now presents challenges to international law. This contribution argues that a conception of sovereignty as a functional and relational concept, rather than absolute and indivisible, would allow the Union to be accepted as a state for certain purposes in international law. The term “state” in international agreements could be interpreted to include legal persons, such as the Union, exercising degrees of statehood. If the EU continues to be regarded as a state-like entity, there will be a growing case for legal consequences to flow from this. Rather than speaking of the Union’s indeterminate or dual character in international law, it should be regarded as exercising degrees of statehood.

According to the United Nations list of non-self-governing territories, there are currently 17 areas that are deemed to be non-self-governing and subject to the process of decolonisation. Western Sahara, with a population of 584,000, and a land mass of 266,000 km is by far the largest of these territories. While the others are still administered by Western powers (United Kingdom, United States, France and New Zealand), Spain no longer considers itself to be responsible for the administration of Western Sahara, a position it has held since 1976. Most of the territory of Western Sahara has been under Moroccan occupation since 1975. Morocco considers Western Sahara to be a part of its territory, although no other states have recognised this claim. The conflict remains subject to international negotiations. In April 2018, the United Nations Security Council renewed the mandate of the United Nations Mission for the Referendum in Western Sahara, and reaffirmed its commitment to the self-determination of the people of Western Sahara.

One of the significant changes in the landscape of international law in recent decades has been the increase in the number of international courts and other forms of international dispute settlement. The EU has pushed for the inclusion of dispute settlement chapters in its trade and investment agreements, it has joined multilateral treaties that include dispute settlement mechanisms, and it has proposed the establishment of multilateral investment court. The Court of Justice of the European Union has shown a more guarded approach in recent years towards international dispute settlement. This article explores the potential ways to address these sources of conflict and allow the CJEU to coexist with other international courts.

In his Fourth Report on the Identification of Customary International Law (2016), Special Rapporteur Sir Michael Wood confirmed that ‘[i]n certain cases, the practice of international organizations also contributes to the expression, or creation, of rules of customary international law’. That the practice of international organizations can be relevant when identifying customary international law is relatively uncontroversial. The issue that is more debated is the extent to which the practice of international organizations as such may contribute to the development of customary international law. Using examples from the European Union's treaty practice and from the Court of Justice of the European Union, this article argues that international organizations may contribute to such practice, not only by representing the collective will of States, but as autonomous actors in their own right.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1255-1268 | European Forum Insight of 23 December 2021 | (Table of Contents) I. Introduction. - II. Background. - III. Jurisdiction. - III.1. Multilateral agreement argument. - III.2. EU law interpretation argument. - IV. Intra-EU application of the ECT. - IV.1. Does an ECT tribunal interpret EU law?. - IV.2. Autonomy of the EU Legal order. - V. Conclusion. | (Abstract) In case C-741/19 Republic of Moldova v Komstroy LLC ECLI:EU:C:2021:655, the Grand Chamber of the Court of Justice of the European Union found that the acquisition of a claim arising from a contract for the supply of electricity does not constitute an \"investment\" within the meaning of the Energy Charter Treaty (ECT). Yet the impact of the case goes far beyond this finding. In coming to this conclusion, the Court found that i) it has jurisdiction to give a preliminary ruling in a dispute that has little or no connection to the EU legal order and ii) the intra-EU application of the ECT's investor-state dispute settlement mechanisms is incompatible with EU law. The Court thus answered the question, debated in academia and before arbitral tribunals, whether the reasoning in its 2018 Achmea judgment applied in relation to the ECT's dispute settlement provisions. Whereas arbitral tribunals have approached the issue through the lens of public international law, in particular the law of treaties, the EU Court approaches the question as one about the autonomy of the EU legal order. Like Achmea, the effects of Komstroy outside the EU legal order are likely to be limited.

On December 21, 2016, the Grand Chamber of the Court of Justice of the European Union (CJEU) dismissed an action brought by the Front Polisario challenging a decision of the Council of the European Union (EU) approving the conclusion of an agreement between the European Union and the Kingdom Morocco on the reciprocal liberalization of certain agricultural products. The CJEU held, based on the relevant rules of international law applicable between the EU and Morocco, that the agreement did not apply to the territory of Western Sahara. Apart from its obvious political overtones, the judgment is significant in further developing the CJEU's approach to the law of treaties and the principle of self-determination in international law.

Court of Justice of the European Union decision on application of an agreement to Western Sahara in light of the law of treaties and the principle of self-determination