Melbourne Journal of International Law
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WHERE ARE CITIES IN THE INTERNATIONAL LEGAL ORDER? THE EXERCISE OF SUPRANATIONAL REGULATORY AUTHORITY BY CITIES
AMIN LABBAFI[*]
Nowadays, cities are not merely providers of local services to residents. Indeed, cities and their local governments are increasingly engaged in the diffusion and creation of supranational norms and regulations. One manifestation of this phenomenon is the rise of cities’ multilateral cooperation in areas as diverse as human rights and climate regulation to housing and health policies during the recent two decades. By means of an analytical distinction between global and international law, this paper reflects upon three aspects of the exercise of supranational regulatory authority by cities. Those are: first, the construction of a basis for cities’ supranational authority based on the functional capacity of city governments and the dysfunctionality of states; second, the lack of international legal personality of cities; and finally, the problem of accountability and enforcement regarding the supranational normative commitments made by cities.
This paper suggests that normative transactions between cities could be best grasped by the notion of trans-local law. Trans-local law is the product of normative transactions and multilateral cooperation among cities with the potential to steer the behaviour of local governments. The result of that is a form of complementarity in the regulation of supranational issues that complements public international law and has the capacity to influence state legal systems. As such, the complementarity of trans-local law could be normatively desirable as it results in more robust governance of supranational issues, such as climate change, preventing the failure of one level of regulation — national or international — from turning into a complete failure for the wider global regulatory system.
CONTENTS
Cities have turned into global actors that can influence the landscape of the global legal order, and their presence in the global legal order is becoming widespread. There is, nowadays, an abundance of global city networks, such as the C40 Cities Climate Leadership Group (‘C40’) and the United Cities and Local Governments (‘UCLG’).[1] These city networks mimic the form of state-centric international organisations and function as global forums that promote the supranational (cross-polity) role of cities in the governance of various areas, such as global climate governance.[2]
Equally important, the engagement of cities in the global legal order has caused conflicts between the local governments of cities and central governments as well as state-centric transnational organisations. One notable example is the case before the Court of Justice of the European Union brought by the cities of Paris and Brussels and the municipality of Madrid against the European Commission.[3] The General Court, indeed, granted standing to cities as legal persons under the Treaty on the Functioning of the European Union, and the case was initially decided in favour of the cities and municipalities, granting them wider authority to regulate for stronger environmental protection.[4] However, on appeal, the Court of Justice ruled that the General Court erred in its decision regarding the admissibility of the case as the European Commission’s regulation regarding vehicle emissions standards did not directly concern those cities.[5] Despite the Court of Justice’s decision, the case illustrates a direct legal encounter between several cities and the institution of a state-centric supranational body, the European Commission. Another notable national example is the tension between the Netherlands’ central government and the city of Utrecht.[6] The city advocated international human rights law and the right to shelter as authoritative grounds to justify providing shelter to undocumented migrants, despite objections from the Netherlands’ central government.[7]
This phenomenon is, however, in an uncomfortable relation with international legal architecture, which only recognises the legal personality of states and state‑made international organisations.[8] The incorporation of cities inside this architecture raises difficulties. On the one hand, under a doctrinal understanding of international law, only states can make valid legal norms. On the other, cities are taking up supranational functions that do not fit the state-centric architecture of public international law.
The present paper aims to give a brief and non-exhaustive account of the global rise of cities as crucial tiers of local government in two interrelated domains of international law and the global legal order. Through an analytical distinction between global law and international law, we could better understand the avenues which are open to cities for claiming a role in mitigating at least some of the global governance issues, such as environmental protection. The paper reflects on the main limitations that cities encounter for taking up the role of a global actor and the available relevant strategies, legal or discursive, to overcome such restraints. These interrelated difficulties are: first, the construction of the legal capacity for global engagement based on functional capacity; second, the difficulty of accountability and enforcement; and finally, the problem of legality concerning norms created in supranational and cross-polity arrangements of city governments (legality here means the criteria that determines when a norm is a legal norm). Together, these could direct the future trajectory of cities as emerging global legal actors that are increasingly expressing their relevance not only as local-level governments but also as significant global actors.
Legal pluralist scholarship has been mostly concerned with non-state legal actors, and not until recently did the nascent role of cities and local governments attract attention.[9] The need for further concentration on cities — these units of government rooted in the pre-nation-state era — is evident since they have an in‑between characteristic. This in-betweenness makes them a peculiar and borderline case of non-state actors in two important ways. First, unlike other non‑state actors, they are territorial entities constituted through national constitutions or equivalent national laws.[10] Second, they are the closest level of government to people as they have public functions and a system of administration that goes to the office based on public participation of city residents (at least in democratic states), and their decisions affect the daily lives of the local population.[11] Rather than being driven by a desire to promote self-interest, their decision-making is public in the sense that they play an important role in mobilising and responding to public needs.[12]
Additionally, there is little trace of cities in academic teaching and formal sources of international law. As Chrystie Swiney observes, the curricula of academic institutions show ‘a lack of focus on cities in international law courses’.[13] Even though legal scholars have started to pay more attention to cities as the objects of their research analysis, the topic is still a burgeoning field of law in need of further investigation.[14] Likewise, the formal international law sources reflect the same thing. Article 2(1) of the Vienna Convention of the Law of Treaties limits the definition of the ‘treaty’ to only ‘international agreements concluded between States’.[15] Article 38 of the Statute of the International Court of Justice limits the sources of international law to state practice and agreements among states.[16] Article 25(3) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States expressly excludes the independent standing of sub-national governments as a party to investment disputes and disregards them as independent bearers of responsibility.[17]
Although cities are almost invisible in formal sources of international law and are overshadowed by the state-centric architecture of public international law, the trajectory of the development of modern international law has usually been affected by non-state actors in addition to sovereign states.[18] Cities are a recent and peculiar example of these influential non-state actors. As Martti Koskenniemi argues, international law today has two opposing characteristics and those are rigorous formalism and political open-endedness.[19] This means that the making, interpretation and application of laws within the international legal order are influenced not only by formal sources, rules, principles and actors of international law but also by open-ended politics and contestations between states, non-state actors and societal forces. Indeed, the oscillation between formalism (formal rules and principles) and realism (contestation of established rules or established interpretation of rules) is part of ‘the standard experience of any international lawyer in the normal contexts of academy or practice’.[20] It is also part of the generative grammar of international law.[21] In other words, international law reconstructs itself through these opposing aspects.
Drawing upon Koskenniemi’s distinction between the formal aspect and argumentative aspect (or politics) of international law, the role and status of cities and sub-state governments appear to be driven more by the politics surrounding international law than by its formal aspects, such as established rules and principles.[22] Based on the distinction between formalism and realism, it seems that the formal rules, principles and institutions of international law do not easily lend themselves to accommodating local government authority in international lawmaking and law-applying. This is because local governments, in general, lack international legal personality, depriving them of the capacity to independently form legal relations, which is a necessary precondition for claiming authority to create laws under international law.[23] Despite lacking recognised legal personality in public international law, cities can influence the development of public international law by engaging in its politics.
Despite the lack of formal status in what is commonly known as hard law sources of international law, cities are proactively engaged in several global governance areas, including human rights, environmental protection and climate governance.[24] For instance, the significant capacity of cities to fill the gap related to the slow progress of states in curbing their greenhouse gas (‘GHG’) emissions is acknowledged time and again by different United Nations bodies.[25] In the context of climate governance, it is enough to mention two statistical facts about the significant potential of cities in mitigating climate change: more than half of the world population lives in urban areas,[26] and more than 70% of anthropogenic GHG emissions originate from cities and urban-related operations.[27] Importantly, several main emission sources, including the building sector, transportation and waste management, have strong ties with cities’ daily operations.[28] These are areas that often fall under cities’ authority to regulate.[29] Therefore, the special position of cities in regulating these climate-related areas makes them important actors in delivering climate governance objectives.
In the same vein, in 2015 the number of transnational and local city networks amounted to 170 and this number has grown since.[30] These networks pursue their own independent initiatives for tackling global governance issues and their importance for galvanising international law norms and goals at a local level, such as the realisation of the UN Sustainable Development Goals, is being reiterated time and again by leading international institutions.[31] The considerable size, range of actions and ambitious targets of these networks are remarkable. The biggest and one of the oldest of these global city networks is the UCLG, which comprises 240,000 sub-national members at different tiers across 140 countries.[32] The UCLG Constitution states that ‘[s]tates cannot centrally manage and control the complex integrated cities and towns of today and tomorrow’.[33] Moreover, the UCLG has an internal governing structure consisting of the General Assembly, World Council and Executive Bureau that meet regularly, produce normative documents such as declarations and pacts, and set goals for the organisation to pursue.[34] As such, it is one of the most important city networks that cooperates with different bodies of the UN including UN-Habitat, and fosters city governments’ capacity in supranational regulations.
Another notable example is the C40, which is primarily active in climate governance and has about 100 member cities.[35] The C40 is actively present in Conferences of the Parties (‘COPs’) to the UN Framework Convention on Climate Change (‘Climate Change Convention’) and its primary goal is to unite cities to ‘confront the climate crisis’.[36] This is exemplified in the adoption of a series of mandatory membership criteria by the C40 Steering Committee, which requires city members to adopt ‘climate action plan aligned with the 1.5˚C ambition of the Paris Agreement’ to remain on track to meet their targets.[37] It also convenes an initiative called Cities Race to Zero by which city members commit to ‘reach (net‑) zero in the 2040s or sooner, or by mid-century at the latest’ and report on their progress annually.[38]
These illustrative examples of supranational cooperation among cities through networks or multilateral regulation of global issues indicate the growing presence of cities in mitigating global challenges. This not only grants cities the ability to govern and steer supra-state matters but also provides them with a normative and regulatory capacity that has significant connotations for the law.[39] In the following sections, we will go through some of these connotations.
As Ran Hirschl argues, in the Westphalian legal system cities are constitutionally voiceless.[40] This is because national constitutions are central in defining competencies for foreign relations, and these competencies are among the constitutionally entrenched competencies of central governments rather than cities and local tiers of government.[41] Nonetheless, the rise of cities on the global stage is a challenge to the idea of cities as voiceless governmental units. Indeed, the constitutional competencies of local governments fall short of being the only factor in determining the proactive role of cities in supranational settings.[42] Global environmental governance shows that cities and other tiers of local government have not been the simple followers of states in their supranational agendas and policy preferences due to constitutional incapacity.[43] Indeed, the growing prevalence of multi-level governance arrangements allows cities to pursue their local interests against their national governments’ policies.[44] This has occurred even among those sub-state units that have a thin constitutional competency concerning energy regulation, not to even speak of formal capacity to engage supranationally in climate-related governance forums.[45] Thus, a direct causal relationship between the constitutional capacity and the engagement of local governments in supranational decision-making forums cannot be firmly established.
In this respect, one explanation for cities’ increasing interest in global decision‑making processes is the expansion of decision-making over a wide range of issues at the global level and the unmediated impact of those at the local level.[46] This has mobilised them to create a niche in the global legal order.[47] Using such global niches, they protect those local interests that go beyond the confines of national borders, such as environmental policy. Borrowing from Simona Piattoni, one of the consequences of these developments is that states have lost their gatekeeping capacity, as solo actors on supranational levels.[48] This provides cities and other sub-state entities with opportunities to bypass states and engage with international and global forums of decision-making.[49] Despite the evolving situation regarding sub-state governments’ legal personality on a supranational level[50] and other crucial questions, sub-state governments use the fluid, multi‑level governance structures of the global order to pursue claims ‘without laissez‑passer’ such as constitutional competency.[51] The spillover effect of the growth of this practice can either be an increase in dialogue between local and central governments about the governance of supranational issues or possible jurisdictional frictions.[52]
As such, the supranational presence of cities seems to be partly the logical consequence of the increased decentralisation of states[53] and the prominence of multi-level governance arrangements at national and supranational levels.[54] In this regard, one can see that the involvement of cities in global norm-making centres is characterised by peculiar modes of authority-building. Indeed, cities empower themselves by employing the language of commitment towards the implementation of existing international rules. By undertaking commitments to realise the substance of already existing international legal norms, cities are able to build up authority vis-a-vis states.[55] Let us consider one example: following the withdrawal of the United States from the Paris Agreement, several American cities signed the Chicago Climate Charter (‘Chicago Charter’) and announced that they will comply with the Paris Agreement despite the US central government’s decision.[56] The preamble of the Chicago Charter states that the Paris Agreement specifically cites ‘the importance of cities and local governments in engaging in climate action’.[57] The preamble continues as follows: ‘President Trump’s decision to withdraw the United States from the Paris Agreement spurred over 380 cities in the US ... to commit themselves to the agreement’.[58]
The voluntary undertaking of commitments seems to serve a double purpose for both overcoming the lack of formal legal capacity under the international law structure and for contesting nation-state decisions. The result of employing the language of commitment is that when local governments commit themselves to implement an international rule, they indirectly claim the authority to act based on their functional suitability. In other words, they claim competence to complement states’ commitments under public international law, to fill the gap caused by a state’s reluctance regarding the discharge of their international commitments, or to regulate an unregulated global governance area. As such, cities contest nation‑states’ monopoly on international norm-making by either advocating for the provisions and objectives of international agreements or by the local incorporation of norms that their host states are reluctant to ratify.[59]
Cities promote their supranational presence along two distinct but interconnected frontiers of international law and global law.[60] Different conceptions of legality, enforcement and authority guide these two legal universes. The former is a legal space that is, though not exclusively, directed by sovereign states. The latter is characterised by fluid authority and is occupied by various actors with norm-making capacity that could affect the state-centric system of international law. These two universes overlap and interact by lending and borrowing different aspects (such as language, expertise, authority and formality) from one another.[61] For instance, the international environmental regime has hybrid characteristics belonging to each of these domains.[62]
In the international law domain, there is growing acknowledgment of cities’ significance in implementing international law norms and objectives, particularly in areas like environmental protection and global sustainable development.[63] Cities play dual roles, serving as both specific objects of regulation under international law[64] and as strategic partners of international institutions in the implementation of international rules.[65] As mentioned in the previous section, cities are gaining more visibility as influential actors in the politics of international law. The strategic partnerships between cities, global city networks and international organisations, as well as the active contributions of cities and local governments in recent COPs to the Paris Agreement and Convention on Biological Diversity, show that local governments and cities are gaining a firmer foothold in the politics of international law.[66]
Although these engagements and cooperations in international norm-making forums and with international institutions have not led to a complete recognition of cities’ roles by states, international courts or tribunals, there has been an incremental acceptance of their contributions to both the development and implementation of international legal norms. For instance, the UN High Commissioner for Human Rights highlights the crucial role of cities in complementing the responsibility of states in promoting and protecting international human rights norms.[67] Another notable example is the proactive contribution of local governments to the Kunming–Montreal Global Biodiversity Framework, which led to the recognition of the significance of cities’ submissions in the development of the post-2020 Global Biodiversity Framework.[68]
Despite such developments, it seems that cities remain more as objects of regulation or similarly as instruments for the implementation of international law rules rather than legal subjects with legal personality in public international law.[69] As a result, the puzzling questions related to accountability and enforcement of commitments undertaken by cities remain unanswered. The main reason for this, as was mentioned earlier, is tied up with the lack of independent legal personhood of cities at a supra-state level.[70] This prevents them from possessing full ‘actorness’ since even if they undertake commitments, they cannot be held legally responsible for those commitments under a doctrinal perspective of international law due to their lack of legal personality in public international law.
There are two ways to study cities’ exercise of supranational regulatory authority. Those are either studying cities’ actorness within international law structures or the frame of global law. The space of international law has a stronger doctrinal emphasis and stands on certain principles, such as the doctrine of state responsibility.[71] In this setting, as mentioned, cities are invisible units of analysis.[72] Even when attention is paid to cities, they are seen as strategic partners for implementing international norms, rather than as subjects capable of exercising supranational norm-making authority. [73]
In contrast to international law, the domain of global law seems to be the main ground on which cities are emerging as global actors. In this respect, global law proposes a different legal imaginary that is opposed to the ‘sovereigntist’ and state‑centric imaginary of international law, which is predominantly based on the monopolisation of legal personality by states.[74] Indeed, if we look at the supranational presence of cities purely from an international law perspective, we might miss the bigger picture. That bigger picture offers a fuller scene, showing a multiplicity of different actors on different levels and areas of governance that can make and apply norms crossing national polities. The benefit of global law language is that it acknowledges the multi-level character of supranational norm‑making and is more descriptively accurate in depicting the influential role of other non-state actors capable of producing norms that would have supra-state reach.
This paper proposes the framework and language of global law as a better prism for studying the emergence of cities in global governance. The importance of adopting new and more dynamic approaches for the study of cities is also important due to growing global urbanisation and the intensive effects of global crises, such as climate change and pandemics, on urban centres because of the concentration of population, infrastructure and capital in cities.[75] This indicates there is a burden on legal scholars, especially international lawyers, to take cities seriously in supranational forms of lawmaking and try to understand this phenomenon more accurately rather than excluding it through a monist, state‑centric lens.
But what is global law? The best way to explain this is to map three main characteristics of global law. First, global law transcends demarcated state jurisdictions, has a planetary reach and does not depend on validation by state legal systems.[76] Second, it crosses internal–external and private–public dichotomies and connects these dichotomies in the process of the creation and application of its norms.[77] Lastly, it lacks an institutionalised centre such as an organisation or tribunal with authority to produce norms or decide about normative conflicts between parties.[78]
In a classic but still valid article, Gunther Teubner articulates his ideas of global law by using the example of lex mercatoria and global corporate governance.[79] Teubner argues global law grows out of ‘the social peripheries, not from the political centres of nation-states and international institutions’.[80] In a subsequent writing Teubner states:
[T]he source of the new global law is no longer only institutionalized politics which is still not really global but only international politics, but also and especially other social systems that in the race to globalization have long overtaken politics. The economy, not just the economy but other social sectors such as science, technology, the mass media, ... are, on their specific path to globalization, developing a massive requirement for norms that is met not by governmental and intergovernmental institutions but by themselves in direct action upon the law.[81]
Cities and city networks can be added to this list. These normative sectors are not limited to lex mercatoria and could be equally valid in other areas of transnational regulations, including lex sportiva, global environmental law, the regulation of emerging technologies, and various other emerging fields, including trans-local law as a growing field within global law.[82] Therefore, global law, in general terms, refers to the global reach of law regardless of national boundaries. These are legal norms made by non-sovereign and non-state actors who interact on a global scale and coordinate their activities regardless of national jurisdictional boundaries which determine what law is and who can make legal norms supranationally. As such, global legal norms bypass national legal systems by means of internally making and applying legal norms (norms that are applicable only to members of a cooperation scheme) in supranational forms of cooperation.
The universe of global law comprises interacting normative communities on a supranational scale, including private global regulatory bodies such as the International Sustainability Standards Board and International Accounting Standards Board.[83] These entities are guided by distinct conceptions of legality, which may differ from the criteria used in public international law or national jurisdictions to determine what constitutes a legal norm.[84] As Neil Walker argues:
On this view, the national level remains important ... Crucially, however, national law and the actors of the national legal system are less and less self-contained and self-reliant. They are increasingly unlikely to operate in isolation, without the catalyst, guidance, support, moderation or challenge of regulatory forms situated beyond the national jurisdiction or otherwise not coterminous with the national jurisdiction, or without effects on destinations situated beyond or otherwise not coterminous with the national jurisdiction, whether these be legal rule-making sites or decision-taking forums.[85]
Within the realm of global law, cities demonstrate their potential for supranational cooperation and multilateral formulation of rules that impact the structure and content of their local laws and policies.
As mentioned, city governments have gone beyond the local and national borders and are increasingly taking actions in areas that fall outside the neat, categorical divisions of local, national and international.[86] In her scholarly works on the idea of the global city, Saskia Sassen shows how cities can bypass local and national scales and become significant actors on the supra-state scale even though cities are traditionally perceived as locally bounded actors.[87] By providing examples from three global cities — New York, London and Tokyo — Sassen convincingly argues that these cities have been able to cooperate independently and can significantly influence the trajectory of the global economy.[88] This line of argument has been further developed by international politics scholars, such as Michele Acuto, who assert that cities, in addition to impacting the global economy, are also building the capability to influence global governance.[89] Turning to the global capacity of cities, although the city is prima facie a local entity tasked with performing certain functions in relation to the local public, this does not preclude the fact that cities cannot interact with the global scale and with each other transnationally.[90]
With respect to the global presence of cities, the present paper proposes the term trans-local to grasp the normative transactions not only between cities but also between cities and the principal actors of international law, including states and international organisations. Trans-locality could be defined as the interconnection and interaction between localities beyond the local and national boundaries. Applying that definition of trans-locality, localities, including cities, would not merely be locally bounded entities; they can form interrelations not only with other localities but also with international forums of norm-making. These interrelationships could be seen in diverse contexts of environmental, economic, construction and sociocultural policies of a locality which are either formed by voluntary adherence to international legal norms or by independent agreement among cities to abide by certain norms and standards.
One example of this is the Net Zero Carbon Buildings Accelerator, which is an initiative signed by 29 cities that are members of the C40 network.[91] The member cities commit ‘to enact regulations and planning policy to ensure new buildings operate at net zero carbon by 2030 and all buildings by 2050’.[92] It exemplifies not only the norms developed by cities in the form of intercity cooperation to mitigate global warming but also the independent and voluntary incorporation of the objectives of an international agreement, specifically, the Paris Agreement. In this respect, the notion of trans-local law seeks to describe and analyse the multilateral arrangements among localities that can produce normative documents with the result of influencing the behaviour of local governments through local laws and local policies.
There remains a question looming behind the supranational regulatory authority of cities: does the accumulation of normative documents and city-made commitments have any legal character? To take this to its extreme, could the normative engagement of cities in global governance lead to the development of a special trans-local legal regime, or in a sense, a normative community capable of regulating the acts of city governments? One could say that the growing development of the body of standardised practices and normative agreements by cities and local governments is aimed at regulating those city behaviours that have a global dimension, such as environmental policies. These demonstrate two important characteristics of cities’ supranational regulatory claims.
First, cities use the language of international law, including human rights treaties and other agreements made between states. Drawing on Neil Walker, international law provides an important platform (or language) for actors who are not traditionally understood as actors of international law but are nonetheless active and emerging non-state actors in the decentralised space of global law.[93] International law finds a capricious quality here. It is both an enabling and a limiting factor in relation to cities’ supranational norm-making capacity (due to their lack of international legal personality). In other words, the formal sources and principles of international law give the necessary language to cities to begin with their presence on the global norm-making landscape.
Second, cities and their supranational normative instruments (declarations, initiatives, etc) grow an independent-like language that seems to ignore the principles underpinning the dominance of sovereign states in international law — principles that limit local governments’ capacity to have supranational standing. Indeed, the supranational regulatory authority of cities might fall short of a fully differentiated normative order, but it depicts an independent identity indicating an emerging normative order. For instance, the Pact for the Future of Humanity adopted by the UCLG starts as follows:
We, local and regional governments and their associations from around the world, representing communities large and small, metropolitan, rural and urban, gathered at the 7th UCLG World Congress ... under the theme of Local and Regional Governments Breaking through as One, adopted the Pact for the Future of humanity ...[94]
The text above illustrates how some of these normative documents which are made by similar multilateral arrangements among city governments adopt a constitutional tone. Such a tone is characterised by the use of the first plural pronoun, the use of the present tense verb in provisions and the devising of a list of rights resembling international human rights treaties or national constitutional bills of rights.[95] These characteristics provide multilateral arrangements of cities with a form of legitimacy and authority to effectively bypass national governments in implementing international treaties and norms, which also challenges the nation-state claims as the only relevant representative of public interests in supranational regulatory forums.[96]
Three consequences could be speculated from supranational governance by cities. First, the emergence and development of city governments on the transnational level will influence the content and the trajectory of the international legal system. The supra-state effect of this development would enable cities to gain firmer footholds in the international legal system through reserving seats around the tables of international norm-making forums, as illustrated by local governments’ significant presence in the COP to the Climate Change Convention.[97] This is important since international norm-making mechanisms were traditionally under state monopoly throughout the modern manifestation of international law since the 19th century.
Second, the ramifications of this shift will not be limited to international law but will also have spillover effects on our understanding of other areas of law, such as constitutional law, which have been traditionally associated with state-centrism, as well as the relationship between local governments and central governments. Indeed, the example of North American cities signing the Chicago Charter indicates how city governments self-constitute authority to regulate certain issues without necessarily having or even demanding constitutional modifications in relation to the scope of their jurisdiction.[98] However, this might have capricious effects. On the one hand, it could introduce conflicts with a normative, critical edge as in the case of Utrecht city, and result in robust and multi-layered protection of human rights concerning marginalised individuals, such as undocumented migrants.[99] On the other, it could erode national constitutions as traditional legal instruments for maintaining the rule of law and the division of authority as well as for determining competencies.
The last and perhaps most crucial consequence of supranational norm‑making by cities would be the development of a form of trans-local law within the space of global law, which influences the local ordinances, local laws and policies of municipal governments that are a member of a global city network such as UCLG (a form of internal regulation). This could be explained more clearly by adopting the theoretical framework of a strand of legal pluralism that was crafted by Eugene Ehrlich and was developed in one way or another by Gunther Teubner, Paul Berman, Sally Falk Moore and John Griffith.[100] In general terms, this strand of legal pluralism holds that in addition to state law at both national and international levels, there is a thick multiplicity of legal orders interacting, overlapping and contesting each other.[101] As Paul Berman puts it, legal pluralism is an entrenched reality not only in what we know as transnational law but also in international law and domestic legal orders that were traditionally conceived as monistic state‑centric legal systems.[102]
The emergence and development of these plural legal orders are the results of the internal normative ordering of associations and communities which are active on multiple levels — local, national and global — and pursue purposes as diverse as climate regulation, regulation of the construction industry, protection of human rights, etc.[103] In this respect, the norms and rules produced by cities within the structures of global city networks, such as UCLG or C40, have this characteristic. The law here refers to norms that are applicable only to member cities directing the local lawmaking and policy choices of those cities. For instance, the signing of the Chicago Charter by North American cities is a form of the internal ordering of climate-relevant policies and local laws of member cities based on the provisions of the Paris Agreement. The same argument could be made about the Pact for the Future of Humanity adopted by the UCLG that, one way or another, directs cities to align their local laws, ordinances and policies with the norms reflected in that document.[104]
Sceptics might question this and say that normative documents adopted because of city governments’ supranational arrangements are only a series of aspirational documents.[105] Indeed, the issue here is not whether these documents are considered legally binding documents when it comes to adjudication by domestic or international courts. They most certainly will not be given such weight when it comes to adjudication by courts. Rather, the point here is that the emergence and growth of these municipal movements, conceived as normative communities in legal pluralist terms, constitutes a phenomenon with far-reaching significance affecting the development of law, especially on a supranational level. This is significant because global city networks and other forms of supranational cooperation among cities enable them to transcend state legal systems and formal international law structures to independently decide supranational issues through the channels of their normative communities (city networks etc).[106] If these supranational normative engagements are not outrightly challenged by state legal systems and international law organisations, they will continue to direct the policy preferences and local laws of the involved cities.[107]
Another consequence of such labour for making norms within cities’ supranational cooperation arrangements will be the injection of discourse, especially the moral discourse of local care, as well as the discourse on multi-level complementarity.[108] The result of this is not a sheer conflict and radical rapture from state legal systems. Quite the opposite, the phenomenon suggests a sense of multi-level overlap and complementarity based on the re-specification of international law rules and principles coated with new understandings offered by local governments. This will inevitably affect the development of law discursively, in terms of interpreting and applying it in courts, international tribunals or international organisations.
One example is the report of the UN High Commissioner for Human Rights on the cruciality of local governments for the respect, protection and implementation of human rights.[109] The report mirrors the idea of complementarity regarding the accountability of both state and local governments regarding human rights obligations.[110] It remains vague as to how local governments, which have no legal personality within the monistic structure of international law, could be held accountable within the same structure.[111] However, it indicates that the global municipal movement in the past two decades has been able to get acknowledgment from state-centric institutions of international law to highlight the importance of city governments as crucial frontline implementers of international law norms.[112]
Based on the preceding analysis, I propose a typology for mapping trans-local forms of cooperation and norms, which could hopefully aid further research in this area. It is essential to acknowledge that this typology is analytical and the categories are not mutually exclusive. Therefore, these forms can coexist concurrently in reality.
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Rule-making →
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Referential
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Spontaneous
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Rule-applying →
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Complementary
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Incorporative
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In general, trans-local engagements could be divided into two main categories of rule-making and rule-applying. With regard to cities’ rule-making on the supranational level, these norms are either independently created without reference to rules of international law or other foreign legal systems (spontaneous) or inspired by the objectives and provisions of a treaty or agreement that already exists in public international law (referential). One example of the spontaneous type of rule-making is the Net Zero Carbon Buildings initiative, in which member cities commit to locally adhere to certain standards and principles in their urban building regulations.[113] Indeed, the initiative is crafted in the absence of any overarching international legal framework concerning the construction of urban buildings. The referential category is exemplified by the Chicago Charter, in which no new norm is created by cities that signed the Charter. The Chicago Charter reflects the ambition of signatory cities to align with the objectives of the Paris Agreement, an existing international agreement, in response to the US withdrawal from the agreement.[114]
It is noteworthy that both referential and spontaneous types of rule-making can involve supranational norms that conflict with a state’s position on an international or a global legal norm. An example of conflicting local and national agendas is the city of San Francisco’s advocacy of the provisions of the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’).[115] Despite non-ratification of the treaty by the US, the city of San Francisco endorsed the CEDAW provisions and mainstreamed the Convention’s objectives in its local ordinances.[116]
The second category concerns the rule-application aspect of trans-local engagements. This can be divided into two subcategories: complementary rule‑application and incorporative rule-application. The complementary rule‑application refers to types of local engagements in which one state signs and ratifies an international treaty or agreement, but its sub-state units and municipal governments take a more ambitious approach regarding the implementation or promotion of certain treaty objectives and provisions. One example of complementarity is the C40’s Climate Action Planning programme, through which member cities may take a more ambitious approach compared to nationally determined targets regarding climate governance and commit to set ‘ambitious interim goal[s] and/or carbon budget[s]’ by 2030 and ‘to become an emissions neutral city by 2050 at the latest’.[117]
Incorporative rule-applying refers to instances where a city incorporates or commits to incorporate a norm produced within a city network or an international law norm into its local laws. It is noteworthy that this is not equally available to all cities due to the difference in constitutional competencies that local governments enjoy across different states. However, when a city has the legal capacity to make and apply laws in different areas of local governance, this gives them enough room to import supranational norms into their local law’s corpus. This also enhances the enforceability of incorporated norms, as cities become accountable (legally or democratically) for non-adherence when they incorporate a norm into their local or urban laws. It means that a city or local government can, in theory, be challenged in a national court or have its membership in a city network suspended if it fails to abide by laws that it has incorporated in its urban laws. Moreover, unlike the complementary rule-application, the incorporative rule-application can align with or diverge from national legal norms.
To illustrate, let us reconsider the example of the Net Zero Carbon Buildings Accelerator.[118] The signatory cities to this initiative committed to incorporate the targets and principles of the initiative in their local laws and regulations.[119] As such, the City of San Francisco (a member city of this initiative) incorporated those commitments by amending its environmental code and required ‘new construction ... to exclude natural gas and include exclusively all-electric energy sources’.[120] Although these commitments might not be enforced through international adjudicatory bodies, once a city incorporates supranational norms into its local or urban laws, this opens up the possibility of holding a city liable for non‑compliance with its own local laws. This can be achieved through national courts or democratic, political processes in local elections, especially if the non‑adherence negatively affects local residents.
According to Barber, ‘the nation-state is failing us on a global scale. It was the perfect political recipe for the liberty and independence of autonomous peoples and nations. It is utterly unsuited to interdependence’.[121] Despite the growth of cities’ significance in dealing with different crises of global character and despite their potential for mitigating those crises, it remains important to avoid treating cities as a panacea for solving all the complex problems of global governance. Indeed, we should be cautious about the power relations involved in cities’ global engagements since these are accompanied by new configurations of power relations that could potentially introduce new types of centre–periphery divides and exclusions. As observed by one scholar, notwithstanding the negative effects of global crises such as climate change on cities’ functions, the same crisis can gather new actors around the mitigation of such crises to use cities as platforms for shaping governance issues for their private benefit.[122] This might lead to marketing the city as a global window for private actors rather than as public governmental entities which are concerned with the protection of public interests of the locals against effects of climate change.[123]
Although the authority of states on regulating supranational and cross-polity affairs has been increasingly eroded due to the socio-economic effects of globalisation,[124] states and the state-centric structure of international law will remain important. Indeed, the point this article tried to show is not that engagement of cities in supranational norm-making constitutes a rapture from the statist instruments and structure of international law. Rather, it is to emphasise that supranational norm-making by cities within the space of global law will have directive and constraining effects on international law institutions and states. This means that states and international law institutions are no more than mere normative actors when it comes to the regulation of issues with supra-state reach.
As such, the problem does not seem to lie in treating states as important legal actors. The problem lies in excluding the constructive role of local levels of government that are closest to people, including cities in supranational lawmaking processes. In other words, the descriptive and critical robustness of legal pluralist accounts, which is embedded in the global law framework, is not based on celebrating non-state actors at the expense of excluding states. As Neil Walker argues, states will remain ‘the most important source of law within the global mosaic’;[125] it is the ‘mosaic’ characteristic of legal sources and the interaction between state and non-state legal actors that needs to be acknowledged more seriously.
In this respect, the development of trans-localism as a family member of global law and governance could offer several benefits. It could facilitate opportunities for innovative legal experiments, relieving states from an old-fashioned expectation that sees nation-states as the sole resolver of all issues on a global scale.[126] Further, it fills the gap in regulating those issue areas that states are reluctant to regulate due to a lack of local knowledge and resources.[127] As such, trans-localism promotes complementarity towards both making the global legal norms and co-enforcing commitments with the cooperation of cities. This could also foster the interaction of cities with the domain of international law in which cities will continue to be informal but strategic actors. It also provides them with the potential to affect the construction of future international law.[128]
By way of conclusion, the prospect of an emerging trans-local legal regime promotes complementarity, as the most promising type of trans-localism, towards co-enforcing international law commitments with the cooperation of cities. This interactive approach could complement the still-dominant state-centrism in both public international and domestic public laws.[129] The result of such complementarity is the robust governance of supranational issues, which prevents the failure of one level of regulation, such as national or international, from turning into a total failure for the whole global regulatory system.
[*] PhD Candidate, Faculty of Law, University of Helsinki. I would like to thank Professor Tuomas Ojanen and Dr Massimo Fichera for their invaluable insights, support and encouragement. I am also deeply appreciative of Professor Neil Walker for his valuable comments during my research visit to Edinburgh Law School. Moreover, I am thankful for the time and constructive feedback given by anonymous reviewers and the editorial team of the Melbourne Journal of International Law. I also extend my appreciation to the Oskar Öflunds Foundation and the Finnish Section of the Nordic Federation of Public Administration (‘NAF’) for financially supporting my work. Any error or shortcoming in the arguments presented remains mine.
[1] Michele Acuto and Steve Rayner, ‘City Networks: Breaking Gridlocks or Forging (New) Lock-Ins?’ (2016) 92(5) International Affairs 1147, 1156–7; ‘About Us’, United Cities and Local Governments (Web Page) <https://uclg.org/about-us/>, archived at <https://perma.cc/8S7C-SG58>; ‘About C40’, C40 Cities (Web Page) <https://www.c40.org/about-c40/>, archived at <https://perma.cc/4MMP-Q7BB>. This paper aims to broadly explore the involvement of sub-state units like cities, municipalities and local governments in supra-state norm-making activities. The terms ‘city’, ‘municipality’ and ‘local government’ are used interchangeably throughout, as the focus is not on analysing their differences. It is worth noting that while ‘city’ lacks a clear legal definition, ‘municipality’ and ‘local government’ are more familiar terms in legal contexts.
[2] Katherine Schroeder, ‘Cities in International Law: The New Landscape of Global Governance’ (2021) 61(2) Virginia Journal of International Law 363, 390, 396, 400. Throughout the article, the terms ‘supra-state’, ‘supranational’ and ‘transnational’ are used interchangeably, despite the differences they might have in literature. The overarching intention is to broadly denote forms of norm-making that surpass state legal systems and extend beyond national borders, exerting regulatory influence.
[3] Ville de Paris v European Commission (Court of Justice of the European Union, T-339/16, T‑352/16 and T-391/16, ECLI:EU:T:2018:927, 13 December 2018) [19]–[20] (‘Paris, Bruxelles and Madrid v EC’).
[4] Ibid [38]–[40], [84], [158].
[5] Federal Republic of Germany v European Commission (Court of Justice of the European Union, C-177/19 P, C-178/19 P and C-179/19 P, ECLI:EU:C:2022:10, 13 January 2022) [101]–[103]. Any natural or legal person, including a non-EU member state, that is directly affected by a regulatory Act can bring an action for annulment of that Act under art 263 of the Treaty on the Functioning of the European Union, opened for signature 7 February 1992, [2016] OJ C 202/47 (entered into force 1 November 1993): Paris, Bruxelles and Madrid v EC (n 3) [41].
[6] See generally Moritz Baumgärtel and Barbara Oomen, ‘Pulling Human Rights Back In?: Local Authorities, International Law and the Reception of Undocumented Migrants’ (2019) 51(2) Journal of Legal Pluralism and Unofficial Law 172, 178–81.
[7] Ibid 178.
[8] Chrystie Swiney, ‘The Urbanization of International Law and International Relations: The Rising Soft Power of Cities in Global Governance’ (2020) 41(2) Michigan Journal of International Law 227, 233.
[9] See, eg, Barbara Oomen and Moritz Baumgärtel, ‘Frontier Cities: The Rise of Local Authorities as an Opportunity for International Human Rights Law’ (2018) 29(2) European Journal of International Law 607, 625–6.
[10] Simona Piattoni, The Theory of Multi-Level Governance: Conceptual, Empirical, and Normative Challenges (Oxford University Press, 2010) 29–30.
[11] Report of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/26/Rev.1(Vol. I) (3–14 June 1992) annex II (‘Agenda 21’) [28.1].
[12] See Gerald E Frug and David J Barron, ‘International Local Government Law’ (2006) 38(1) Urban Lawyer 1, 34–5.
[14] See, eg, Frug and Barron (n 12); Judith Resnik, ‘Translocal Transnationalism: Foreign and Domestic Affairs’ (2008) (102) Proceedings of the Annual Meeting (American Society of International Law) 341 (‘Translocal Transnationalism’); Judith Resnik, ‘Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism’ (2007) 57(1) Emory Law Journal 31 (‘Foreign as Domestic Affairs’); Mariana Valverde, ‘Seeing Like a City: The Dialectic of Modern and Premodern Ways of Seeing in Urban Governance’ (2011) 45(2) Law and Society Review 277; Jolene Lin, Governing Climate Change: Global Cities and Transnational Lawmaking (Cambridge University Press, 2018); Helmut Philipp Aust and Janne E Nijman (eds), Research Handbook on International Law and Cities (Edward Elgar, 2021).
[15] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (‘VCLT’).
[16] Statute of the International Court of Justice art 38.
[17] Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature 18 March 1965, 575 UNTS 159 (entered into force 14 October 1966). See Frug and Barron (n 12) 19–20.
[18] See Frug and Barron (n 12) 18; Jean d’Aspremont, ‘Conclusion: Inclusive Law-‑Making and Law-‑Enforcement Processes for an Exclusive International Legal System’ in Jean d’Aspremont (ed), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge, 2011) 425, 428–9.
[19] Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press, rev ed, 2005) 562–3.
[20] Ibid 565 (emphasis omitted).
[21] Ibid.
[22] Ibid 563–4.
[23] See Yishai Blank, ‘International Legal Personality/Subjectivity of Cities’ in Helmut Philipp Aust and Janne E Nijman (eds), Research Handbook on International Law and Cities (Edward Elgar, 2021) 103, 106–8 (‘International Legal Personality/Subjectivity of Cities’).
[24] Schroeder (n 2) 390–4; Acuto and Rayner (n 1) 1147, 1151–3.
[25] See United Nations Environment Programme, Climate Commitments of Subnational Actors and Business: A Quantitative Assessment of their Emission Reduction Impact (Report, June 2015) viii–ix, 1, 11 <http://www.unep.org/resources/report/climate-commitments-subnational-actors-and-business-quantitative-assessment-their> , archived at <https://perma.cc/4T7S-P4VU> (‘Climate Commitments of Subnational Actors and Business’).
[26] ‘Urban Development’, World Bank (Web Page) <https://www.worldbank.org/en/ topic/urbandevelopment/overview>, archived at <https://perma.cc/4LJM-2WBV>.
[27] Megha Mukim and Mark Roberts, ‘Main Messages’ in Megha Mukim and Mark Roberts (eds), Thriving: Making Cities Green, Resilient, and Inclusive in a Changing Climate (World Bank, 2023) xvii, xvii; ‘Climate Change’, UN-Habitat (Web Page) <https://unhabitat.org/topic/climate-change>, archived at <https://perma.cc/7ZKR-79F5>.
[28] ‘Cities and Climate Change’, United Nations Environmental Programme (Web Page) <https://www.unep.org/explore-topics/resource-efficiency/what-we-do/cities/cities-and-climate-change>, archived at <https://perma.cc/H5RX-LMXX>. See also the C40 Climate Action Plan Inventory that measures waste as one major source of urban-related emissions: ‘Greenhouse Gas Emissions Interactive Dashboard’, C40 Knowledge Hub (Web Page) <https://www.c40knowledgehub.org/s/article/C40-cities-greenhouse-gas-emissions-interactive-dashboard?language=en_US>, archived at <https://perma.cc/H5SN-9RSW>.
[29] Frug and Barron (n 12) 21–7.
[30] Acuto and Rayner (n 1) 1148.
[32] United Cities and Local Governments, Who Are We? (Fact Sheet) <https://www.uclg.org/sites/default/files/uclg_who_we_are_0.pdf>, archived at <https://perma.cc/7UTW-V78Y>.
[33] The Constitution of the World Organisation of United Cities and Local Governments (signed and entered into force 5 May 2004) <https://www.uclg.org/sites/default/files/eng_constitution _2013_.pdf>, archived at <https://perma.cc/MVT5-5YPG> (‘UCLG Constitution’).
[34] Ibid arts 32–3, 35, 39–41, 45, 48–9, 55.
[35] ‘Our Cities’, C40 Cities (Web Page) <https://www.c40.org/cities/>, archived at <https://perma.cc/7624-3KUK>.
[36] See, eg, C40, C40 Annual Report (Report, 31 March 2023) 6 <https://www.c40.org/wp‑content/uploads/2023/03/C40-Cities-Annual-Report-2022_ Published-Online-31-Mar-2023.pdf>, archived at <https://perma.cc/RP6U-2ZNM>; ‘About C40’ (n 1).
[37] C40 Cities Steering Committee, ‘Statement by the C40 Cities Steering Committee on the Organisation’s New Leadership Standards’ (Press Statement, C40 Cities, 6 January 2021) <https://www.c40.org/news/statement-by-the-c40-cities-steering-committee/>, archived at <https://perma.cc/Z2XG-LT4P>.
[38] ‘Cities Race to Zero’, C40 Cities (Web Page) <https://www.c40.org/what-we-do/building-a-movement/cities-race-to-zero/>, archived at <https://perma.cc/6452-DKJF>.
[39] For more information on the relationship between the power to govern and the power to regulate, see Jiří Přibáň, Constitutional Imaginaries: A Theory of European Societal Constitutionalism (Routledge, 2022) 21–3, 33.
[40] Ran Hirschl, City, State: Constitutionalism and the Megacity (Oxford University Press, 2020) 10, 182.
[41] Tom Ginsburg, ‘Comparative Foreign Relations Law: A National Constitutions Perspective’ in Curtis A Bradley (ed), The Oxford Handbook of Comparative Foreign Relations Law (Oxford University Press, 2019) 62, 77.
[42] See, eg, Elin Royles and Nicola McEwen, ‘Empowered for Action?: Capacities and Constraints in Sub-State Government Climate Action in Scotland and Wales’ (2015) 24(6) Environmental Politics 1034, 1043–4.
[43] Ibid 1043.
[44] See, eg, Chicago Council on Global Affairs, The Chicago Climate Charter: North American Cities Taking Action on Climate (Summit Report, December 2018) (‘Chicago Climate Charter Summit Report 2018’). See also UCLG Constitution (n 33). The preamble to the UCLG Constitution emphasises the inability of states to ‘manage and control the complex integrated cities and towns of today’ and indicates the need of cities to pursue their local interests.
[45] See, eg, Royles and McEwen (n 42) 1033–4. See also Elin Royles, ‘Sub-State Diplomacy: Understanding the International Opportunity Structures’ (2017) 27(4) Regional and Federal Studies 398. The author argues that ‘[g]reater autonomous external projection was evident in the policy domains where the Welsh Government had least constitutional basis for international activity’: at 407. It can be inferred that constitutional competencies alone do not solely determine the extent of engagement by cities and sub-state tiers of government in transnational norm-making and decision-making processes.
[46] Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2009) 93.
[47] Ibid.
[49] Ibid.
[50] Blank, ‘International Legal Personality/Subjectivity of Cities’ (n 23).
[52] See Metalclad Corporation v United Mexican States (Award) (ICSID Arbitral Tribunal, Case No ARB(AF)/97/1, 30 August 2000) [73]. See also Willem v France (European Court of Human Rights, Chamber, Application No 10883/05, 16 July 2009) [36]–[39].
[53] For a comparative analysis of decentralisation and the empowerment of local authorities, see Liesbet Hooghe, Gary Marks and Arjan H Schakel, The Rise of Regional Authority: A Comparative Study of 42 Democracies (Routledge, 2010) ch 4.
[54] See Martin Jänicke, ‘The Multi-Level System of Global Climate Governance: The Model and its Current State’ (2017) 27(2) Environmental Policy and Governance 108, 118.
[55] Chris Thornhill, ‘Rights and Constituent Power in the Global Constitution’ (2014) 10(3) International Journal of Law in Context 357, 365. Thornhill argues that legal and political actors often utilise the language of rights to empower themselves in norm-making and decision-making. Interestingly, at the global level, local governments have adopted the language of commitments or obligations instead of rights as a strategy to establish their supra‑state norm-making authority.
[56] Chicago Climate Charter (signed and entered into force 4–5 December); Office of the Mayor of the City of Chicago, ‘Mayor Emanuel and Global Mayors Sign the Chicago Climate Charter at the North American Climate Summit’ (Press Release, 5 December 2017) <https://www.chicago.gov/city/en/depts/mayor/press_room/press_releases/2017/december/ChicagoClimateSummitCharter.html>, archived at <https://perma.cc/N99R-4AL4>.
[57] Chicago Climate Charter (n 56) Preamble.
[58] Ibid.
[60] See David J Gordon and Kristin Ljungkvist, ‘Theorizing the Globally Engaged City in World Politics’ (2022) 28(1) European Journal of International Relations 58, 65–7.
[61] Neil Walker, Intimations of Global Law (Cambridge University Press, 2015) 50–1, 58–9. One example of such interaction is the preamble to the UCLG Constitution and the language of the preamble to the Charter of the United Nations: see UCLG Constitution (n 33) Preamble.
[63] Climate Commitments of Subnational Actors and Business (n 25).
[64] For instance, UN Sustainable Development Goal 11 in the 2030 Agenda for Sustainable Development focuses on urban areas and cities: see Transforming Our World: The 2030 Agenda for Sustainable Development, GA Res 70/1, UN Doc A/RES/70/1 (25 September 2015) paras 21–2, 34. See also Mirko Sossai, ‘Invisibility of Cities in Classical International Law’ in Helmut Philipp Aust and Janne E Nijman (eds), Research Handbook on International Law and Cities (Edward Elgar, 2021) 64, 71–3.
[66] Kunming–Montreal Global Biodiversity Framework, Decision 15/4, 15th mtg, Agenda Item 9A, UN Doc CBD/COP/DEC/15/4 (19 December 2022) 2 (‘Global Biodiversity Framework’). See also Report of the Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement on Its Third Session, Held in Glasgow from 31 October to 13 November 2021, Decision 1/CMA.3, UN Doc FCCC/PA/CMA/2021/10/Add.1 (8 March 2022) 9 [88].
[67] Local Government and Human Rights: Report of the United Nations High Commissioner for Human Rights, UN GAOR, 51st sess, Agenda Items 2–3, UN Doc A/HRC/51/10 (22 July 2022) 12 [55] (‘Local Government and Human Rights’).
[68] Global Biodiversity Framework, UN Doc CBD/COP/DEC/15/4 (n 66).
[69] Janne Nijman, ‘The Future of the City and the International Law of the Future’ in Sam Muller et al (eds), The Law of the Future and the Future of Law (Torkel Opsahl Academic EPublisher, 2011) 213, 224–5 <https://www.toaep.org/ps-pdf/11-muller-zouridis-frishman-kistemaker>, archived at <https://perma.cc/GJ9F-GKLV>. See Gordon and Ljungkvist (n 60) 66; Oomen and Baumgärtel (n 9) 611–13, citing Yishai Blank, ‘Localism in the New Global Legal Order’ (2006) 47(1) Harvard International Law Journal 263, 266–9 and Yishai Blank, ‘The City and the World’ (2006) 44(3) Columbia Journal of Transnational Law 875, 898; Schroeder (n 2) 368–72, 375–7, 390, 412.
[70] See Ngaire Naffine, ‘Who Are Law’s Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66(3) Modern Law Review 346, 350–7.
[71] Frug and Barron (n 12) 19–20; Swiney (n 8) 233–5; Responsibility of States for Internationally Wrongful Acts, GA Res 56/83, UN GAOR, 56th sess, 83rd plen mtg, Agenda Item 162, UN Doc A/RES/56/83 (28 January 2002) annex (‘Responsibility of States for Internationally Wrongful Acts’) art 4.
[72] See above Part II.
[73] Frug and Barron (n 12) 2–3; Swiney (n 8) 248–9; Nijman (n 69) 227–9.
[74] Montevideo Convention on the Rights and Duties of States, opened for signature 26 December [1936] LNTSer 9; 1933, 165 LNTS 19 (entered into force 26 December 1934) art 2. See Nijman (n 69) 227.
[75] New Urban Agenda, GA Res 71/256, UN GAOR, 71st sess, 68th plen mtg, Agenda Item 20, UN Doc A/RES/71/256 (25 January 2017, adopted 23 December 2016) annex, para 2.
[77] Ibid 16.
[78] Ibid 19, 26.
[79] Gunther Teubner, ‘“Global Bukowina”: Legal Pluralism in the World Society’ in Gunther Teubner (ed), Global Law without a State (Dartmouth, 1997) 3.
[80] Ibid 7.
[81] Gunther Teubner, ‘Global Private Regimes: Neo-Spontaneous Law and Dual Constitution of Autonomous Sectors?’ in Karl-Heinz Ladeur (ed), Public Governance in the Age of Globalization (Ashgate, 2004) 71, 73 (emphasis added).
[82] See Roger Cotterrell, ‘What is Transnational Law?’ (2012) 37(2) Law and Social Inquiry 500, 500. On the trajectory of international law in face of global urbanisation, see Nijman (n 69) 223–4.
[83] See generally ‘About the International Sustainability Standards Board’, IFRS (Web Page) <https://www.ifrs.org/groups/international-sustainability-standards-board/>, archived at <https://perma.cc/ZQ7K-MKKG>; ‘About the International Accounting Standards Board (IASB)’, IFRS (Web Page) <https://www.ifrs.org/groups/international-accounting-standards-board/>, archived at <https://perma.cc/E4XP-V8BN>.
[84] In general, the doctrinal perspective in public international law takes a norm as a legal norm when it is reflected in a treaty or agreement that State X has signed and ratified, or reflected in the opinion or decision of an international court or tribunal whose jurisdiction State X has accepted, or when a legal norm is part of customary international law and State X has not consistently objected to that norm: see Statute of the International Court of Justice art 38; VCLT (n 15) art 2. On the juridical nature of customary practices in international law, see North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Judgment) [1969] ICJ Rep 3, 44 [77].
[86] See above n 3 and accompanying text.
[87] Saskia Sassen, The Global City: New York, London, Tokyo (Princeton University Press, 2nd ed, 2013) 171–2, 330.
[88] For a discussion on the concept of a ‘global city’, see ibid.
[89] Acuto and Rayner (n 1) 1147–51. See also Kristin Ljungkvist, The Global City 2.0: From Strategic Site to Global Actor (Routledge, 2016) ch 3.
[90] See Sassen (n 87) 171–2; Acuto and Rayner (n 1) 1157.
[91] ‘Net Zero Carbon Buildings Accelerator’, C40 Cities (Web Page) <https://www.c40.org/accelerators/net-zero-carbon-buildings/>, archived at <https://perma.cc/W524-QCZ6>.
[92] Ibid.
[94] United Cities and Local Governments Congress, Pact for the Future of Humanity: The Daejeon Political Declaration (Declaration) 3 <https://www.uclg.org/sites/default/files/ uclgpactforthe_future.pdf>, archived at <https://perma.cc/5DXH-VJLB> (‘Daejeon Political Declaration’).
[96] Ibid; Oomen and Baumgärtel (n 9) 628–30; Judith Resnik, ‘The Internationalism of American Federalism: Missouri and Holland’ (2008) 73(4) Missouri Law Review 1105, 1116–21. On the supremacy of national government in matters related to foreign policy, see, eg, Crosby v National Foreign Trade Council, [2000] USSC 54; 530 US 363, 389–91 (2000).
[97] United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107 (entered into force 21 March 1994).
[98] See Chicago Climate Charter (n 56); Schroeder (n 2) 385–8.
[99] See above Part II. See also Oomen and Baumgärtel (n 9) 624–5.
[100] For a discussion on legal pluralism and globalisation, see generally Gunther Teubner (ed), Global Law without a State (Dartmouth, 1997); Gunther Teubner, Law as an Autopoietic System, tr Anne Bankowska and Ruth Adler (Blackwell, 1993); John Griffiths, ‘What is Legal Pluralism?’ (1986) 18(24) Journal of Legal Pluralism and Unofficial Law 1; Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge University Press, 2012); Sally Falk Moore, Comparing Impossibilities: Selected Essays of Sally Falk Moore (HAU Books, 2016) ch 11; Sally Falk Moore, ‘Local People and Global Goings-On: An African Story’ in Paul Schiff Berman (ed), The Oxford Handbook of Global Legal Pluralism (Oxford University Press, 2020) 41, 64–5.
[101] Brian Z Tamanaha, Legal Pluralism Explained: History, Theory, Consequences (Oxford University Press, 2021) 169–86.
[102] Paul Schiff Berman, ‘The Evolution of Global Legal Pluralism’ in Roger Cotterrell and Maksymilian Del Mar (eds), Authority in Transnational Legal Theory: Theorising across Disciplines (Edward Elgar, 2016) 151, 151; Acuto and Rayner (n 1) 1153.
[103] See above 12–13; Cotterrell (n 82) 520–1; Acuto and Rayner (n 1) 1153.
[104] Daejeon Political Declaration (n 94) 10–11, 14–15, 17–18.
[105] See Lin (n 14) 178–9, 191.
[106] Cotterrell (n 82) 520–1; Resnik, ‘Foreign as Domestic Affairs’ (n 14) 40–1, 78–80; Oomen and Baumgärtel (n 9) 611–12.
[107] Resnik, ‘Translocal Transnationalism’ (n 14) 342–3.
[108] Cities are the most proximate level of government to people, and the most caring level of government too because of such proximity: see Agenda 21, UN Doc A/CONF.151/26/Rev.1(Vol. I) (n 11) [28.1].
[109] Local Government and Human Rights (n 67).
[110] Ibid 10–11 [48]–[50], [53].
[111] Ibid.
[112] See, eg, ibid 15–16 [67]–[72]; Climate Commitments of Subnational Actors and Business (n 25) 11.
[113] C40 Cities, C40 Net Zero Carbon Buildings Declaration: How Cities Are Delivering Low Carbon and Energy Efficient Buildings (Annual City Progress Report, February 2022) (‘C40 Net Zero Carbon Buildings Declaration’).
[114] Chicago Climate Charter Summit Report 2018 (n 44) 5–6.
[115] Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981).
[116] SF, Cal, Admin Code ch 33A (2017).
[117] ‘1.5°C Climate Action Plans’, C40 Cities (Web Page) <https://www.c40.org/what-we-do/raising-climate-ambition/1-5c-climate-action-plans/>, archived at <https://perma.cc/ ZMG5-AL4Z>.
[118] ‘Net Zero Carbon Buildings Accelerator’, C40 Cities (Web Page) <https://www.c40.org/accelerators/net-zero-carbon-buildings/>, archived at <https://perma.cc/6SBU-3DZC>.
[119] C40 Net Zero Carbon Buildings Declaration (n 113) 5.
[120] SF, Cal, Ordinance 8-20 (28 January 2017).
[121] Benjamin R Barber, If Mayors Ruled the World: Dysfunctional Nations, Rising Cities (Yale University Press, 2013) 3.
[122] David J Gordon, ‘Global Urban Climate Governance in Three and a Half Parts: Experimentation, Coordination, Integration (and Contestation)’ (2018) 9(6) WIREs Climate Change e546:1–15, 9–10.
[123] Acuto and Rayner (n 1) 1163–4.
[124] Sassen (n 87) 23–4; Nijman (n 69) 223–4, 229.
[125] Walker (n 61) 16 (emphasis omitted).
[126] Oomen and Baumgärtel (n 9) 628; Simon Curtis ‘Cities and Global Governance: State Failure or a New Global Order?’ (2016) 44(3) Millennium: Journal of International Studies 455, 456; Barber (n 121) 20–2.
[127] Oomen and Baumgärtel (n 9) 608; Acuto and Rayner (n 1) 1154–5.
[128] Nijman (n 69) 224–5, 228.
[129] See Tamanaha (n 101) 157.
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