The Luxembourg Court Rules on the Difference between States and Countries as International Law Actors

On 23 September 2020, the General Court of the European Union (GCEU) in Case T-370-19 Kingdom of Spain v. European Commission rendered a judgment that will surely become an important footnote in any textbook of public international law dealing with treaties and subjects. In this case, the GCEU ruled, among others, on whether certain acts by the EU in relation to Kosovo amounted to its recognition as a sovereign State, in particular the conclusion by the EU of international agreements with Kosovo and recognition by the EU of its representations in different EU mechanisms.

Facts of the Case

In 2019, the European Commission issued a decision by which it recognised that Kosovo’s National Regulatory Authority (NRA) could participate in the Body of European Regulators for Electronic Communications (BEREC). The Commission treated Kosovo as a ‘third country’ within the meaning of Article 35(2) of Regulation 2018/1971 (EU Regulation). The decision to accept Kosovo’s NRA in BEREC was also based on the Stabilisation and Association Agreement (SAA) that Kosovo has signed with the EU.

Spain, a strong opponent of Kosovo’s independence, called for annulment of the Commission’s decision of 2019. First, according to Spain, the concept of a ‘third country’ is equivalent to that of a ‘third State’ under the EU legislation. They noted “that recital 34 cites EEA and European Free Trade Association (EFTA) States and candidates for accession as examples of third countries” . Against this background, Spain submitted that “since Kosovo is not legally a ‘third country’, the necessary conditions for the application of that article to Kosovo are not met”. Second, Spain maintained that “participation in BEREC, as provided for in [the EU Regulation], … presupposes the participation of an authority linked to an organisation in the nature of a State, with the result that only a State can have an NRA” .

The GCEU Judgment

The GCEU first noted that the concept of ‘third country’ is not defined in any piece of EU legislation. It then explained that, while provisions of the TFEU refer to both ‘third countries’ and ‘third States’, the former are particularly used in the context of EU external relations “since international society is not made up of ‘States’ alone … [but] is composed of various actors”. It then held in para 30:

that the provisions of the TFEU relating to ‘third countries’ are clearly intended to pave the way for the conclusion of international agreements with entities ‘other than States’. Thus, the European Union may conclude international agreements with territorial entities, covered by the flexible concept of ‘country’, which have the capacity to conclude treaties under international law but which are not necessarily ‘States’ for the purposes of international law. To claim the contrary would be to create a legal vacuum in the European Union’s external relation.

The GCEU did not make reference to the drafting history of TFEU or other sources of EU law to explain that the concept of ‘country’ was intended to conclude agreements with entities other than States. Instead, the GCEU seems to have based its arguments on the practice of the EU thus far. The Court recalled that under the concept of third countries the EU has “concluded a number of international agreements with … the Palestine Liberation Organisation (PLO), the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, the Government of the Hong Kong Special Administrative Region of the People’s Republic of China and the Macao Special Administrative Region of the People’s Republic of China”.

The GCEU then went on to examine the EU’s engagement with Kosovo and stated that

32     … the European Union has entered into several international agreements with Kosovo, thus recognising its capacity to conclude such agreements … The conclusion of those agreements was legally possible only because the concept of ‘third country’ referred to in those provisions of the TFEU could be construed broadly, thereby allowing the European Union to regard Kosovo as such.

33     However, on no occasion has the European Union adopted a position on the status of Kosovo as a State in the light of international law, as evidenced by the provisions set out in the 17th recital and Article 2 of the Kosovo SAA, which make clear that that agreement does not constitute recognition of Kosovo by the European Union as an independent State or affect the individual positions of the Member States on its status …

34     Those precautions taken by the European Union in acts concerning Kosovo … are specifically intended to distinguish between the status of ‘State’ and Kosovo’s capacity to enter into obligations under international law as an international law actor covered by the broader concept of ‘third country’.

35     It follows that the concept of ‘third country’ referred to in EU primary law, particularly Articles 212 and 216 to 218 TFEU, in order to designate entities subject to international law which may have rights and obligations, cannot be construed differently when the same concept appears in a provision of secondary legislation such as Article 35(2) of Regulation 2018/1971. Furthermore, there is nothing to suggest that the concept of ‘third country’ mentioned in that last provision should have any other interpretation than that contained in those provisions of the TFEU.

36     Consequently, the concept of ‘third country’ within the meaning of Article 35(2) of Regulation 2018/1971 cannot, contrary to the Kingdom of Spain’s submissions, be equated with that of ‘third State’. The concept of ‘third country’ has a broader scope which goes beyond sovereign States alone, with the result that Kosovo is capable of falling within it, without prejudice to the position of the European Union or its Member States as regards the status of Kosovo as an independent State. Similarly, as a ‘third country’, Kosovo may also have public authorities, such as the NRA of Kosovo, with the result that the Kingdom of Spain’s assertion that ‘only a State can have an NRA’ cannot reasonably succeed.

Comment

The non-recognition by five EU Member States of Kosovo is the reason why EU, as a legal entity, cannot be considered to have recognised Kosovo as a State. The GCEU, however, decided that Kosovo can be considered a ‘third country’, and under that notion can enter into contractual relations with the EU. When unwrapping the Court’s findings on what a ‘country’ is, a question arises as to whether, except for the designation, it is the same as a ‘State’. In relation to the submission of Spain that only States can have an NRA, the GCEU simply stated that countries too can have NRAs. Furthermore, the GCEU unequivocally held that countries can sign international agreements under public international law. With regard to Kosovo in particular, the GCEU held that the SAA concluded between Kosovo and the EU “refers to an international agreement concluded between two legal persons governed by public international law, namely the European Union and the third country concerned. The Kosovo SAA is, therefore, certainly capable of constituting such an agreement, since it is binding on the parties under public international law” .

While the GCEU referred to “international agreements concluded between two legal persons governed by public international law” it did not engage with rules of the Vienna Convention on the Law of Treaties or the draft rules on equivalent instruments concluded by international organisations, which state that international agreements can only be concluded between States, States and international organisations, and between two or more international organisations. Instead, the GCEU only explained that the EU’s engagement in treaty relations with ‘countries’ is used to avoid “a legal vacuum in the European Union’s external relations”.

Conclusion

The GCEU findings on the differences and similarities between a State and a country were assessed based on EU law and for the purpose of EU external relations. However, they do have implications for general international law. The GCEU clearly established that countries, in addition to universally recognized States, are “international law actors”. It also explained that such actors are legal persons capable to conclude international agreements governed by public international law. The GCEU findings are in line with the practice of the EU thus far. As noted, the EU has in the past signed agreements with entities not recognized as States by the EU.

It must be recalled that the Council of Europe too has employed the notion of ‘country’ to enter into agreements and even accept new members whose sovereignty was questioned. For illustration, in 1950, the Council of Europe accepted Saar as an associate member under the notion of ‘country’. This was ensured because the Statute of the Council of Europe, under chapter II, provides for admission of ‘States’ as full members, and “in exceptional circumstances” also of ‘countries’ as associate members.

In the light of the foregoing, the present judgment by the GCEU is neither contrary to the EU practice nor unique in the work of international organisations. Yet, what makes this judgment worthy of noting is that, to my knowledge, it is the first of this kind that pronounces on the differences between a ‘State’ and a ‘country’ (under EU law), and the rights and obligations that the latter has under public international law. While public international law is silent on the ‘category’ of countries as international law actors, the present judgment, together with the practice of other international organisations, raise valid points that could steer a discussion on how the different actors interact under international law.