This post is part of the Dean Maxwell & Isle Cohen Seminar on International Law: The 2021 Digital Edition, a collaboration between this blog and the Graduate Law Students Association Conference Committee.
By Dr Federica Cristani
Dr Cristani is a Senior Researcher at the Institute of International Relations in Prague (CZ). Her e-mail is: email@example.com
The increasing role played by local authorities in tackling global questions (e.g. migration and climate change) is well demonstrated by the manifold initiatives that have been spreading at the regional and international level and are specifically aimed at facilitating networking among mayors. However, from a public international law perspective, a deeper analysis is required in order to assess whether and to what extent local authorities may be considered ‘global’ actors and what is their role in shaping the international agenda. This blogpost constitutes a first attempt at answering this question.
Which place for ‘local authorities’ under public international law?
Generally, and for the purposes of this blogpost, we label ‘local authorities’ those institutional entities, normally elected (directly or indirectly) by the citizens that are in charge of the public services for a community over a given territory. The concept of local authorities may be used as a comprehensive concept to include municipalities, villages, districts, provinces, regions, etc. – also depending on the specific national constitutional settings of reference. They may differ from each other, according to the territory or reference and the community settled there, as well as in terms of the financial resources available and their legal and/or political organization and competences. Generally, local authorities are ‘legally’ created by the States and their powers and competencies are normally regulated by national provisions (Panara 2015).
From a public international law perspective, the debate around the role of local authorities as active players in the international field has not gained much attention by international law scholars (Blank 2006). This can be due to the fact that, traditionally, local authorities have not enjoyed any autonomous legal standing under public international law – except for those cities that have received international status of ‘free cities’, such like Danzig or Trieste. Some Authors still consider local authorities as ‘creatures of the State, with their powers strictly construed and limited to those granted by the State’ (Frug 1980, p. 1062). Indeed, whenever sub-national entities act at the international level, they are considered as state organs and, accordingly, their actions are attributable to the state (Aust 2015, p. 267).
Nevertheless, there seems to be a general understanding of the increasing role of local authorities at the international level that goes beyond their legal nature of State organ (Aust 2015, p. 259 ). In this respect, social scientists have extensively contributed to the theorization of the so-called rescaling of cities, a concept that has been used to address the transformation and re-organization of the political and administrative apparatus of cities and their new achieved power in comparison with other cities and global actors (Glick Schiller & Caglar 2011, p. 7). Others have talked about a ‘renaissance of the city as a global actor’ and have considered globalization (Auby 2011, p. 205), urbanization, and decentralization to be the three key factors that empower cities (and more generally local authorities) at the international level (Nijman 2016, p. 210). More specifically, globalization is considered to have a pivotal role in the process of ‘glocalization’ (Auby 2011) and in the development of the so-called global cities (Sassen 2001).
Accordingly, it has been argued that cities will increasingly become actors in the international law-making process (Nijman 2011, p. 213). Already in 2000, the then UN Secretary-General Kofi Annan stated that ‘local authorities need real power’ (UN 2000); moreover, it should be recalled the increasing participation of local authorities in international networks for the development of international policies (Papisca 2008, p. 27), which has contributed to what has been labelled as the ‘rising [of] cities [and] declining [of] nation states’ (Barber 2013). This has led some Authors to question the existence of a so-called ‘soft international legal personality’ of local authorities (Nijman 2010; Nijman 2011, p. 228). The debate over the acknowledgment of a kind of international legal personality of local authorities goes beyond the purpose of this blogpost (Blank 2006). What interests here is instead the assessment of the role that local authorities may play at the international level.
The following paragraphs are thus devoted to the analysis of the relationship between cities and international law, with a first overview of which international instruments deal with local authorities (§2.1) in order to identify the rights and obligations of local authorities at the international level. Secondly, the active role of local authorities in international fora is evaluated (§2.2.), taking into account when at what extent they collaborate with other international actors and how they cooperate among themselves in the development of the international agenda.
When international law ‘meets’ local authorities: the most relevant international instruments at stake
We should firstly recall that local authorities, as state organs, should implement all the international obligations, either customary or conventional, of the national State (Blank 2006, 892). When it comes to obligations deriving from international conventions, in particular, they can bind local authorities in two ways: (1) because the national State has signed and ratified the relevant international agreements, thus binding also all state-organs to their implementation; (2) because the local government(s) has decided to implement international conventions independently from the legal commitments taken by the State itself (e.g. the initiative of the Mayor of Seattle, Greg Nickels, who decided, together with other US cities, to implement the Kyoto protocol through their local policies despite the fact the US has not ratified it).
Moreover, local authorities have been at the centre of several international instruments dealing specifically with their role at the international level, especially within the United Nations (UN) framework. On 1 January 1975, the UN General Assembly established the UN Habitat and Human Settlements Foundation (UNHHSF), the first official UN body focusing on urbanization issues. In 1977, after Habitat I, the first international UN conference dedicated to urbanization that took place in Vancouver (Canada), the UN Commission on Human Settlements and the UN Centre for Human Settlements (commonly referred to as UN Habitat) were established. In 1996, a second conference on cities – Habitat II – was held in Istanbul (Turkey), where 171 countries adopted the Habitat Agenda, which, though not legally binding, contains over 100 commitments and 600 recommendations for States with the aim to promote, among others, sustainable human settlements, social development at the local level as well as to strengthen local authorities and their associations and networks. In 2002, the UN General Assembly enhanced the mandate of Habitat (Resolution A/56/206): this marked the establishment of the UN Human Settlements Programme (UN-Habitat).
In the meanwhile, in February 2003 the then UN Secretary General Kofi Anna decided to establish a Panel of Eminent Persons on UN Relations with Civil Society in order to assess how to increase the role of civil society at the international level. The Panel issued a Report in June 2004 (Relations A/58/817, the so-called ‘Cardoso Report’, from the name of the chair of the panel, the former president of Brazil Fernando Cardoso), which recognized a pivotal role to local authorities at the global level and fostered the recognition of ‘local autonomy’ as a universal principle (Relations A/58/817). Although the Cardoso Report was not followed by any General Assembly resolution recognizing ‘local autonomy’, it nonetheless contributed to strengthen the voice of local authorities before the UN (Willetts 2006, p. 305).
In 2007, the Governing Council of UN-Habitat adopted the International Guidelines on Decentralization and the Strengthening of Local Authorities, which were followed in 2009 by the International Guidelines on Decentralization and Access to Basic Services for all. These Guidelines, though not legally binding for member States, serve as a support for any State when adopting national regulations dealing with local issues.
Finally, it should be recalled that the UN Sustainable Development Goals include a specific goal for urban development – Goal 11: ‘Make cities inclusive, safe, resilient and sustainable’.
Overall, one should not ignore the increasing relevance of local authorities in international instruments. Even though such instruments to do grant direct rights to local authorities, they nonetheless contribute in the development of the recognition of local authorities as ‘players’ in the international arena. This kind of relevance is even more evident at the regional level, where we also have legally binding instruments dealing directly with local authorities.
The Council of Europe offers an institutional and legal framework for the recognition of the international role of local authorities. In particular, the Congress of Regional and Local Authorities, one of the organs of the Council of Europe, can be considered as a pioneer of local autonomy, not only at the regional but also at the international level. The Congress was established in 1994, and includes 648 members representing over 200,000 authorities in 47 Member States of the Council of Europe.
The Congress has drafted several international documents affecting the rights of local authorities. The first one is the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities of 1980 (ETS No.106), with which member states of the Council of Europe ‘undertake to facilitate and foster transfrontier co-operation between territorial communities or authorities within their jurisdiction and territorial communities or authorities within the jurisdiction of other Contracting Party’ (Article 1). The Convention has been widely ratified – 39 ratification among the 47 member States of the Council of Europe – and constitutes a benchmark document in the recognition of the role of local authorities at the international level. This Convention was followed by the European Charter of local self-government in 1985 (ETS No.122, ratified by all the 47 Member States of the Council of Europe), which is the first internationally binding agreement that guarantees the rights of local authorities and obliges member States to include in their domestic legal systems the principle of local self-government (Article 3).
In the European regional context, also the European Union offers a relevant institutional and legal framework of reference for local authorities. The 1994 Maastricht Treaty established the European Committee of the Regions (CoR) as a consultative organ of the European Union that would represent the local authorities of the EU member States; it includes 350 members (regional presidents, mayors or elected representatives of regions and cities). The 2009 Lisbon Treaty has then enhanced the powers of the Cor, introducing, among others, its mandatory consultation at all stages of the legislative process by the European Commission, the Council of Ministers and/or the European Parliament and the right to bring actions before the European Court of Justice if the appropriate mandatory consultation in the legislative process has been ignored, or if due regard has not been given to the principle of subsidiarity.
This institutional framework is also supported by a normative apparatus expressly designed for local authorities. Firstly, the role of local authorities is expressly recognized in the Treaty on the European Union (TEU) in article 4(2), according to which ‘[t]he Union shall respect the equality of Member States […] as well as their national identities […] inclusive of regional and local self-government […]’. Moreover, the TEU expressly promotes the principle of subsidiarity, which regulates the allocation and exercise of public functions among different levels of governance (Article 5(3)). The core idea is to give preference to the ‘lower level’ by recognizing that the authority that is ‘closest’ to the citizens enjoys the right (and obligation) to act in the most efficient way. The principle of subsidiarity is complemented by the principle of closeness, which is codified in article 10(3) of the TEU. The implementation of the principles of subsidiarity and of closeness to citizens makes it possible the functioning of the European multilevel governance, which is based on the constant dialogue between institutional actors at all levels of government within the EU. The relevance of multilevel governance for local authorities is well witnessed by the adoption of the Charter for Multilevel Governance in Europe by the CoR (COR-2014-01728-00-00-RES-TRA, 3 April 2014). The Charter, which was opened for signature on 9 May 2014, aims at shaping multilevel governance practices according to, among others, the principles of transparency, openness, subsidiarity, proportionality and inclusiveness of policy-making processes. Even though it is not a legally binding document, all local authorities are invited to sign the Charter and to comply with its principles for the implementation of an efficient multilevel governance in Europe.
The most sophisticated instrument for the exercise of territorial cooperation at the international level today is the European Grouping of Territorial Co-operation (EGTC), whose legal framework is provided by Regulation 1082/2006. In particular, the EGTC is an entity bearing legal personality (Article 1(3)(4)) that can be constituted by public entities ‘located on the territory of at least two Member States’ (Article 3(2)) whose objective is to ‘to facilitate and promote […] territorial cooperation […] between its members’ (Article 1(2)). The EGTC constitutes an opportunity for cooperation among member States for implementing national, regional and local policies (Martínez 2014). The CoR has always fostered the creation of EGsTC and has established an EGTC Platform, so that to allow all relevant stakeholders to exchange their experiences and good practices (Nadalutti 2013).
When local authorities ‘play’ at the international level: developing the international agenda
Local authorities are not only the object of regulations at the international and regional level, but they also actively contribute in the development of international law policies (Blank 2006, p. 874). More in particular, local authorities engage with other international actors through four main channels: (1) through their formal representation in dedicated organs within international organizations; (2) thanks to the ‘consultative’ status that is granted to associations of local authorities as non-governmental organizations (NGOs) within the UN framework; (3) thanks to ad hoc agreements between intergovernmental organizations and associations of local authorities; and (4) through the activities of local authorities-led partnerships – in forms of associations or (in)formal networks – for the development of international-related policies (Nijman 2011, p. 221).
As for channel (1), together with the Congress of Regional and Local Authorities of the Council of Europe or the Committee of the Regions of the European Union one should also mention the UN Advisory Committee of Local Authorities (UNACLA) within the UN system, which was established by Resolution 17/18 of 1999 of the Governing Council of UN-Habitat as an advisory body with the scope of strengthening the dialogue with local authorities for a better implementation of the Habitat Agenda (Papisca 2008, p. 34).
Regarding channel (2), it is worth recalling that NGOs can participate in the work of the UN through consultative status with the Economic and Social Council (ECOSOC), which grants access also to ECOSOC’s subsidiary bodies, to the UN human rights mechanisms, as well as to special events organized by the President of the General Assembly. Several associations of local authorities are registered with consultative status, including, among others, United Cities and Local Governments, Mayors for Peace and Metropolis.
As far as ad hoc agreements between intergovernmental organizations and associations of local authorities are concerned (channel 3), the 2004 Agreement of Cooperation between UN-Habitat and the United Cities and Local Governments (UCLG) is worth mentioning. In particular, the Agreement aims to ‘establish the general terms and conditions under which the Parties shall collaborate […] to implementing a number of joint initiatives […]’ (Article 1).
Finally, local authorities may also form partnerships – associations or (in)formal networks – for the development of international-related policies (channel 4). In this respect, local authorities have developed more and more sophisticated forms of cooperation, ranging from the traditional city twinning (Aust 2015, p. 258) to more structured forms of associations (Acuto 2013). The latter may be shaped in the so-called ‘transboundary co-operation’ (Ruffert 2009), as the ones fostered by the EU through the above mentioned European Grouping of Territorial Co-operation (EGTC) or by the European Outline Convention on Transfrontier Cooperation between Territorial Communities or Authorities within the Council of Europe. In this respect, it has been claimed that local authorities, and cities in particular, have become ‘agents of cross-border collaboration’ (Barber 2013, p. 71).
More frequently, local authorities gather in summits, conferences, associations, or participate in several initiatives (Nijman 2016, p. 229), which are specifically aimed at facilitating networking among mayors and exchange of best practices on several policy issues (Gardner 2017), such as the C40 Climate Leadership Group, the Council of European Municipalities and Regions (CEMR), the Covenant of Mayors, the Global Parliament of Mayors (GPM), the International Council for Local Environmental Initiatives (ICLEI), the Mayors for Peace, the World Association of the Major Metropolises (Metropolis) and the United Cities and Local Governments (UCLG).
Several hypothesis have been put forward in the attempt to theorize and ‘label’ the behaviour of local authorities within their own associations: this way to cooperate has been explained as a form of ‘global administrative law’ (Kingsbury et al. 2005) or as a form of the exercise of ‘international public authority’ (von Bogdandy et al. 2010) or again as an example of ‘laboratories for societal change’ (Glaeser 2011).
Some concluding remarks
As we have seen in the previous paragraphs, local authorities, and especially urban municipalities, have become more and more relevant in the international arena. Especially in the European context, local authorities have been more and more recognized as active players in developing European policies, and a growing recognition of their importance can be also witnessed at the international level. Indeed, local authorities entail rights and obligations at the national, European and international levels: it is true that ‘cities have the potential to make a difference […] not just in cities, but globally’ (Koser 2014).
Acuto, M 2013, Global Cities, Governance and Diplomacy. The Urban Link, Routledge
Auby, JB 2011, ‘Mega-Cities, Glocalization and the Law of the Future’, in Muller, S et al (eds), The Law of the Future and the Future of Law, Torkel Opsahl Academic EPublisher, pp. 203-212
Aust, HP 2015, ‘Shining Cities on the Hill? The Global City, Climate Change and International Law’, European Journal of International Law, vol. 26, no. 1, pp. 255–278
Barber, B 2013, If Mayors Ruled the World. Rising Cities, Declining Nation States, Yale University Press
Blank, Y 2006, ‘The City and the World’, Columbia Journal of Transnational Law, vol. 44, pp. 868-931
Frug, GE 1980, ‘The City as a Legal Concept’, Harvard Law Review, vol. 93, no. 6, pp. 1057-1154
Gardner, A 2017, ‘Local leaders urge concerted international action to stabilise Mediterranean’, European Committee of the Regions – News, http://cor.europa.eu/en/news/Pages/local-leaders-urge-concerted-international-action-to-stabilise-mediterranean.aspx
Glaeser, E 2011, The Triumph of the City, Penguin Books
Glick Schiller, N & Caglar, A 2011 (eds), Locating Migration. Rescaling Cities and Migrants, Cornell University Press
Kingsbury, B et al 2005, ‘The Emergence of Global Administrative Law’, Law & Contemporary Problems, vol. 68, pp. 15-61
Koser, K 2014, ‘Cities and the Case for Migration’, Cities of Migration, http://citiesofmigration.ca/ezine_stories/khalid-koser-cities-and-the-case-for-migration
Martínez, AA 2014, ‘Towards a New Generation of European Groupings of Territorial Cooperation’, European Structural & Investment Funds Journal, vol. 2, no. 2, pp. 89-100
Nadalutti, E 2013, ‘Does the ‘European Grouping of Territorial Co-operation’ Promote Multi-level Governance within the European Union?’, Journal of Common Market Studies, vol. 51, no. 4, pp. 756-771
Nijman, JE 2010, ‘Non-State Actors and the International Rule of Law: Revisiting the ‘Realist Theory’ of International Legal Personality’, in Noortmann, M & Ryngaert, C (eds), Non State Actors Dynamics in International Law: From Law-Takers to Law-Makers, Ashgate, pp. 91-124
Nijman, JE 2011, ‘The Future of the City and the International Law of the Future’, in Muller, S et al (eds), The Law of the Future and the Future of Law, Torkel Opsahl Academic EPublisher, pp. 213-230
Nijman, JE 2016, ‘Renaissance of the City as Global Actor. The Role of Foreign Policy and International Law Practices in the Construction of Cities as Global Actors’, in Hellmann, G et al (eds), The Transformation of Foreign Policy. Drawing and Managing Boundaries from Antiquity to the Present, Oxford University Press, pp. 209-239
Panara, C 2015, The Sub-National Dimension of the EU. A Legal Study of Multilevel Governance, Springer
Papisca, A 2008, ‘International Law and Human Rights as a Legal Basis for the International Involvement of Local Governments’, in Much, A (ed), City Diplomacy: the Role of Local Governments in Conflict Prevention, Peace-building, Post-conflict Reconstruction, VNG International, pp. 27-44
Ruffert, M 2009, ‘Transboundary Co-operation between Local or Regional Authorities’, Max Planck Encyclopedia of Public International Law, www.mpepil.com
Sassen, S 2001, The Global City: New York, London, Tokyo, Princeton University Press
UN (United Nations) 2000, ‘Secretary-General Calls for Practical, Achievable Programme to Make Globalization a Positive Force for all World’s People’, UN Press Release SG/SM/7479, https://www.un.org/press/en/2000/20000705.sgsm7479.doc.html
von Bogdandy, A et al. (eds) 2010, The Exercise of Public Authority by International Institutions: Advancing International Institutional Law, Springer
Willetts, P 2006, ‘The Cardoso Report on the UN and Civil Society: Functionalism, Global Corporatism, or Global Democracy?’, Global Governance, vol. 12, no. 3, pp. 305-324