Law and the City: Transformation of Cities into Global Legal Actors

Amin Labbafi

University of Helsinki

Cities have turned into global actors that can influence the landscape of the global legal order. There is, nowadays, an abundance of international city networks, such as C40 Cities, United Cities and Local Governments (UCLG), etc. These networks mimic the form of state-centric international organizations and function as global forums that promote the supranational role of cities in the governance of various areas, such as global climate. It is equally significant that the engagement of cities in the global legal order has caused conflicts between central governments, state-centric international organizations, and the local government of cities. 

One notable example is the Court of Justice of the European Union case brought by the cities of Paris, Brussels, and Madrid against the European Commission. The General Court heard the arguments from cities as concerned persons, and the case was initially decided in favor of the cities granting them wider authority for stronger environmental protection. Even though the decision was ultimately overturned by the Court of Justice, the case illustrates a direct legal encounter between several cities and a state-centric supranational body. Another notable example in a national context is the tension between the Netherlands’ central government and the city of Utrecht, which relied on international human rights law and the right to shelter as an authoritative basis to justify its measures of providing shelter to undocumented migrants against the central government’s objection.

My purpose here is to highlight the ramifications of this transformation of cities into proactive supranational actors. My view is that this trend will have implications on two broad levels. First, on the supranational level, we are witnessing the rise of lower-level governments, such as cities, as focal points not only for the realization of international commitments made by states but also as independent global governance actors with their own multilateral forms of cooperation. Second, this trend will breathe new meaning into established constitutional concepts, such as the common good and subsidiarity, and our understanding of the relationship between local and central governments. In other words, the engagement of cities in global structures of policy and norm-making enables them to import their own policy and normative goals that are either more ambitious than those of central governments or even sometimes contrary to those of their central government or state governments in federal systems. 

The constitutional ramifications of global governance by cities could trigger a series of transformations that are not only relevant for international law scholars regarding the ways international norms are developed but also provide a firm ground for constitutional lawyers to take two strands of constitutional theory more seriously. The first strand is the line of scholarship presented by scholars such as Neil Walker, Gunther Teubner, and Chris Thornhill, sometimes labeled as global law and post-national constitutionalism. The common thread of arguments here, as Walker describes, is that in today’s globalized world, national legal systems are less self-reliant regarding the allocation of rule-making authority, and their authority is incomplete because of  “regulatory forms situated beyond the national jurisdiction”. Indeed, on the global level, multiple rule-making sites exercise regulatory authority and norm-making authority is not exclusive to inter-state arrangements. As such, the idea that states are the principal legal rule-makers of the international community loses ground. Translating this into the context of cities growing engagement in global forms of governance, we could see that these forms of engagements challenge states’ gate-keeping capacity by catalyzing, supporting, and diffusing supra-state forms of law at local and societal levels. These engagements do not necessarily have a constitutional pedigree in terms of devolution of authority for engaging in global forms of governance and law-making. 

The second and more recent strand is the revival of common good constitutionalism, which is rooted in classical legal tradition and places the normative locus of government in the protection of the common good or public interests. These interests are neither reducible to the aggregate of individual interests nor incompatible with individual rights and freedoms. The provision of safety, health, and a clean environment are among these goods. In this respect, the typical common good that cities invoke in their multilateral arrangements is the umbrella right to the city, which also encompasses the right to a climate-resilient city and the right to a clean environment in the city. The scholarship on common good constitutionalism, advanced by scholars like Adrian Vermeule, Conor Casey and contributors of the Ius & Iustitium Blog, also has strong links with the legal doctrine of public nuisance and the principle of subsidiarity. In general terms, public nuisance means the damage or loss suffered by the public rather than an individual, and subsidiarity means granting decision-making authority to those who are most affected by a decision or those who have the functional capacity to reach the objectives of a decision. 

Common good constitutionalism builds a foundation for the continuity of constitutional concepts from the domestic level to the decentralized space of global law. Moreover, it calls for the abnegation of state-centric judicial and legislative decision-making in favor of more discretionary power for front-line decision-makers, such as cities. In doing so, it works out a peculiar understanding of the principle of subsidiarity that permits a higher-level regulatory authority for local institutions if that authority is pragmatically well-suited to the function and expertise of that entity. In our context, global climate governance by cities is one clear example, which demonstrates that cities have both the expertise in relation to the reduction of their emissions as well as the duty to protect the common good of the city’s inhabitants, i.e., a safe and resilient human settlement against the detrimental effect of environmental crises. 

Cities act beyond constitutional empowerment

          I believe that these two strands of scholarship provide a sound counterargument to Ran Hirschl’s view, as articulated in City, State Constitutionalism and the Megacity, that “cities have been and still are constitutionally voiceless within the structure of the modern constitutional state”. Regardless of any specific written constitutional empowerment of cities over foreign affairs, which might vary from country to country, cities have been active on an array of issues at a global level. 

          The lack of constitutional voice has not paralyzed city governments from pursuing agendas in a global setting. Although there is a link between constitutional competencies and the international activities of local governments, this link falls short of determining the international presence and impact of subnational units. Indeed, in certain areas, especially regarding international environmental protection, subnational units have not simply followed central governments. One significant example is the Chicago Climate Charter, which was adopted by American cities in the aftermath of the Trump administration’s withdrawal from the Paris Agreement. The signatory cities committed themselves to the implementation of the objectives of the Paris Agreement in their city-level regulations. Despite the fact that foreign affairs is reserved to the federal government within the constitutional framework of the United States, this demonstrates that constitutional power is not the sole determining factor for subnational units to pursue their agendas at an international level. In general, the engagement of cities and local governments in negotiating, diffusing, and advocating supranational norms does not seem to be explicable by reference to the constitutional pedigrees related to the division of competencies between central and local governments alone. 

How to proceed?

The first necessary step for understanding the phenomenon of the supranational authority of cities is to rethink the distinction between formal and de facto institutional competencies and acknowledge the increasing diffusion of these two. This is, to a large extent, visible on a transnational and global level. Indeed, cities and other sub-state governments, which are components of the state apparatus, use informal mechanisms to self-empower and autonomously follow agendas on a global level that might differ from those of the central government. This puts a prospect in front of us. As George Christie states, the recurrence of this de facto authority and its acknowledgment by both international organizations, such as the UN, and states could eventually lead to a de jure legal authority. The fact that cities are building a greater capacity to impact the global order is something that we can already observe. The dynamism behind the pursuit of international agendas by cities and the double implication of this for both international legal theory and post-national constitutional thought is a topic that should be investigated in more depth by scholars of these fields. 

My final argument is that sketching global governance by cities under existing constitutions and international law instruments is not sufficient. In other words, we cannot go far with this epistemic arsenal. This is because we will end up with a predictable answer every time, repeating what Hirschl has already said: that cities are constitutionally voiceless in the structure of the modern constitutional state. Perhaps the problem is not that cities are voiceless but rather that our lens of investigating cities as emerging global legal actors requires us to reconsider our understanding of city governments as mere subordinated units within the hierarchical constitutional state structure by taking post-national constitutionalism and common good constitutionalism more seriously.

Amin Labbafi is a Ph.D. candidate at the Faculty of Law, University of Helsinki 

Suggested Citation: Amin Labbafi, ‘Law and the City: Transformation of Cities into Global Legal Actors’ IACL-AIDC Blog (21 March 2023) https://blog-iacl-aidc.org/2023-posts/2023/3/21/law-and-the-city-transformation-of-cities-into-global-legal-actors.