TTIP Negotiations and Public Procurement: A Federalist Approach
Government procurement is perhaps one of the most underexplored areas in the recent academic literature on transatlantic economic relations and yet it is also one of the most protected economic sectors addressed in the Transatlantic Trade and Investment Partnership (TTIP) negotiations. Even though the EU and the US have undertaken extensive reciprocal procurement commitments under the WTO’s Agreement on Government Procurement, as well as in their respective preferential trade agreements (PTAs), the liberalisation and harmonisation of the transatlantic procurement market could not be more ambiguous or controversial. This paper aims to deepen our understanding of crucial aspects of the current EU–US procurement relationship. To this end, the paper explores the TTIP negotiations as well as similar PTAs and underlines the potential implications in terms of the fragmentation of the international discipline of procurement regulation.
The Relevance of Constitutional Law
This paper questions the relevance of constitutional law in legal systems. Comparative constitutional law scholars have become used to the assumption that constitutional law is a universal point of reference which can be addressed in comparison. If comparative constitutional law is intended to refer to different constitutions, it will be necessary to check the relevance of the particular constitutional law first. Comparative constitutional studies have to develop criteria to address the relevance of constitutional law on the one hand and, on the other hand should be able to go beyond constitution and law to find the relevant comparative perspective.
Speaking the State: Collective Personality, Legal Subjecthood and the Creation of States in International Law
States, their nature, and their creation, have rightly been the subjects of much study in recent years. States are the primary actors of the international legal system, and are its authors. In their system-compliant, system-constitutive and extra-legal actions they exercise immense power, with the ability vastly to change the conditions of life for individuals both within and outside their territories. Questions surrounding whether entities of various kinds qualify as “States” include some of international law’s bitterest disputes – such as the status of Kosovo, Nagorno-Karabakh, and SADR – as well as some of its most intriguing questions – such as the correct status to be accorded to the European Union, multinational corporations, and “failed States”. Yet it is far from clear that States, as collective entities, are truly capable of exercising legal personality at all.
This article will focus on the question of whether States are capable of exercising international personhood for the purposes of subjecthood. In the course of answering that question a secondary question will also be explored: how States are created. Insight into these questions can be gained from sociology and linguistics. States, it is argued, are social constructions, created in their social reality by declarations – linguistic acts with a double (world-word and word-world) direction of fit. As such, it is argued that the creation of plenary statehood is regulated primarily by language rules, rather than legal norms.
What is it that international lawyers understand by means of the concept of “State”? Although States are fundamental to the international legal order as we know it, it is difficult to capture their essential, core characteristics such that they can be theorised and understood. This Chapter will explore the potential of a socio-linguistic approach to advance the enquiry into the nature of States. It will be identified that States are social phenomena, created and maintained in their existence by the recursive actions of individuals, and it will be argued that they therefore need to be understood as complex and changeable phenomena with an inherent socio-political context. In particular, three aporia will be identified in our current understanding of States: the relationships of statehood with sovereignty, with personality, and with law; and it will be argued that a socio-linguistic approach is well placed to provide insight into these questions. The approach will also identify the significant part international lawyers play in creating and maintaining the concept of State, and will conclude that whether as practitioners, commentators, theorists or teachers, what international lawyers think States are matters, except, perhaps, insofar as we think of them as unchanging.