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CITIES AND INTERNATIONAL LAW: LEGALLY INVISIBLE OR RISING SOFT-POWER ACTORS?

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Abstract

International law is seen by many practitioners, as well as by conservative legal scholars, as a strictly inter-state endeavour. Symbolically associated with the Treaty of Westphalia, this may have been true for many centuries. But since – at the latest – the Reparations for Injuries Advisory Opinion of the International Court of Justice recognised the legal personality of the United Nations as the first non-state entity, this strict state-centricity has ceased to reflect the state of affairs. Instead, today’s reality of global governance and its primary normative framework – international law – is messy, pluralist, multistakeholder, uses soft governance tools rather than hard and binding law, and bridges public–private divides. In fact, arguably, states were never monolithic, unified rational actors conducting international law and governance, but were, in fact, when scrutinised through a socio-legal lens, an amalgamation of influence from elements within and without the state apparatus, such as diplomats, networks, bureaucrats, faith organisations, political groups, other levels of governments and more (Berman, 2007). International law worked to reduce such influences to stricter imagined categories such as “subjects” and “objects” for the purpose of creating a solid, dependable, as well as binding legal framework with chances of enforcement. This “subjecthood” or international legal personality is the primary concept in positive international law distinguishing actors from non-actors. Now, however, even the most positivist1 of international lawyers are confronted with the pluralisation of actors without established legal personality engaging in practices traditionally reserved for states. There is, additionally, a growing preference for norms designed to govern international behaviour to be soft, non-binding and created through multistakeholder governance processes rather than binding treaties signed by states only. Non-state actors, starting with international organisations like the United Nations, but later also encompassing individuals, NGOs, transnational corporations and armed groups, have been gradually accepted by international lawyers to be participants and to possess legal significance in international law (Gal-Or et al., 2015). The pluralisation of actors and the softening of the norms created corresponds to a move from multilateralism – referring to an inter-state governance system – towards multistakeholderism – referring to a system of norm generation and governance that involves many actors relevant to a subject matter, which is the premise of this volume. 1. Legal positivism refers to the standpoint that lawyers ought to be interested only in what law is and not what it should be. According to legal positivists, what law is can be determined conclusively by looking at whether it was issued by the relevant authority. “Soft law” and any actors excluded from official law-making capacity should be disregarded as non-law and non-actors, as giving them a quasi-legal value might threaten the legal system. CITIES AND INTERNATIONAL LAW: LEGALLY INVISIBLE OR RISING SOFT-POWER ACTORS? 46 •81• 2021 In this world, cities and their transnational city networks (TCNs) have been engaging with increasing resonance, competence and rigour in the governance of (and norm generation on) issues that would traditionally be considered within the jurisdiction of the state. Our previous research (Durmuş and Oomen, forthcoming) focussing on the field of migration has found that this engagement of cities with matters of global governance, including by mobilising international law, can be generally divided into two types of engagement, namely: (a) seeking a seat in traditionally state-centric processes; and (b) creating city-centric (or local-centric, to be more inclusive of non-urban localities) fora to engage collectively with international law and global governance. The two types of engagement are complemented by cities’ engagement with international law in governing their own locality. For some, the question then becomes: Is any of this city engagement relevant for international law? What are the prospects for achieving recognition of cities’ activities and space for their engagement in formal international legal frameworks? This piece argues that international law, even as it currently stands, can be observed both conservatively and more progressively. The progressive perspective recognises – often through the support of interdisciplinary research – the de facto engagement and even influence of local governments on international law. This piece also argues that even if observed through a conservative legal positivist lens, the engagement of local governments with international law is likely to be increasingly relevant to the developments in the content and practice of international law. This is true regardless of whether it takes a long time for any formal change of status to occur – if it occurs at all. If cities, collectively, are seeking formal recognition of their role and status in international law, they are on exactly the right path, both in seeking a seat at the table in state-centric processes and in organising and convening with their peers to engage in international law and governance matters without reservations and concerns about whether or not they are “permitted” by international law to do so (as “subjects” or holders of international legal personality). The recognition of new players in the game, whether by progressive or more conservative observers or by existing players, does not come about by such permission but by a retroactive recognition of accumulated evidence showing a new de facto reality. I will now seek to explicate this by first reflecting on what the conservative and more pluralist perspectives concerning actors in international law are and how they have changed, followed by a reflection on the current state of affairs with regard to cities’ engagement with international law. Finally, I will summarise some suggestions for practitioners representing the municipalist movement in global governance.

Keywords

  • Human rights
  • Integration
  • Refuge