A typology of local governments’ engagement with human rights: Legal pluralist contributions to international law and human rights
| Date | 01 March 2020 |
| DOI | 10.1177/0924051920903241 |
| Author | Elif Durmuş |
| Published date | 01 March 2020 |
| Subject Matter | Articles |
Article
A typology of local governments’
engagement with human rights:
Legal pluralist contributions to
international law
and human rights
Elif Durmus¸
VICI Project ‘Cities of Refuge’, Utrecht University; University College Roosevelt, the Netherlands
Abstract
Local governments around the world have been engaging with international law and policy at an
exponential intensity, with prominent engagement in climate change, migration and more recently
human rights. This engagement cannot be adequately understood within the terms and framework
of positive international law alone. This contribution aims to map and create a grounded typology
of local government engagement with human rights, encompassing both activities within their
localities and outside - at national, international or transnational scales. The article introduces local
governments’ engagement in the Formation of Human Rights, Implementation of Human Rights,
Defence of Human Rights, Coordination of Human Rights, Dissemination of Human Rights and the
Contestation of Human Rights as empirical ideal types that have emerged from data through
grounded theory. Analysing this engagement from the perspectives of both positive international
law as well as legal pluralism, with specific focus on the New Haven School of Law, the article
argues that local governments are now at the core of a newly formed norm-generating community.
Local governments engage with local and international actors and processes both within the rules
of inclusion of contemporary international law-making - seeking to expand these norms to include
local governments themselves - but they also contest and challenge the very rules of the game in
the first place, and resort to creating ‘‘human rights in the city’’ as a body of norms parallel to
international human rights law. Whether we accept a pluralist understanding of international law to
include local governments and their human rights engagement, or whether we consider these
developments to be outside international law, forming a parallel normative order in the legal
pluralist sense, local government engagement with human rights has already succeeded in reaching
and influencing many established international actors and has already infiltrated recent instruments
of positive international law.
Corresponding author:
Elif Durmus¸, PhD Researcher, VICI Project ‘Cities of Refuge’, Utrecht University; Lecturer, University College Roosevelt,
the Netherlands.
E-mail: e.durmus@uu.nl
Netherlands Quarterly of Human Rights
2020, Vol. 38(1) 30–54
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0924051920903241
journals.sagepub.com/home/nqh
NQHR
NQHR
Keywords
Local governments, cities, human rights, localisation of human rights, new haven school of law,
norm-generation, non-state actors
1. INTRODUCTION
Cities in Northern Europe founded the Hanseatic League in the 12th century to facilitate regional
economic, diplomatic and military cooperation, ‘rather autonomously from the Holy Roman
Emperor or the Electors or princes to which they were formally obliged’.
1
Nijman explains how
the executive organ of this League, the Hansetag, ‘adopted rules on trade and safe navigation
routes [which] then bound all member-cities; these rules influence[d ] the development of the
maritime law of nations’.
2
Transnational norm-generation by cities existed before the notion of
the (nation-)State became the primary lens through which we understand the world and interna-
tional law. While cities have long predated the existence of States, today’s positive international
legal order considers local governments to be nothing more than administrative units within a
State’s internal organisation, and as such no more than ‘State organs’.
3
In contrast to this categorisation in positive international law, local governments historically,
and today with a renewed proactivity upon globalisation, urbanisation and decentralisation, have
been engaging with the development of international norms. Human rights, facing difficult times,
have been a field which local governments have increasingly taken ownership of.
4
Local govern-
ments, defined by the UN as the lowest tier of general public administration within a State,
5
have
long stepped out of the boundaries of competence they were thought to be confined in.
6
They
engage in foreign relations autonomously from the State in whose territory they are located,
7
establish transnational city networks to facilitate international cooperation and representation,
8
1. Janne Nijman, ‘Renaissance of the City as a Global Actor – The Role of Foreign Policy and International Law Practices
in the Construction of Cities as Global Actors’, February 2016, Asser Institute Centre for International and European
Law Research Paper Series, 7.
2. ibid 11.
3. International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts (2001), Article
4; ibid 8.
4. Barbara Oomen, Moritz Baumgaertel, ‘Frontier Cities: The Rise of Local Authorities as an Opportunity for International
Human Rights Law’ (2018) 29(2) European Journal of International Law 339.
5. Human Rights Council, Role of Local Government in the Promotion and Protection of Human Rights – Final Report of
the Human Rights Council Advisory Committee, UN Doc. A/HRC/30/49, 7 August 2015, para 8. The United Nations
uses the term ‘local authority’ as a synonym for local government. Some civil society groups, such as the Habitat
International Coalition, reject the notion of tiers of government as diminutive and talk about spheres of government, in
addition to advocating for the inclusion of a public-election-condition for the term ‘local government’ while ‘local
authorities’ may include both elected and appointed officials. Interview with Habitat International Coalition – Housing
and Land Rights Network officials, 20 August 2019.
6. Yishai Blank, ‘Localism in the New Global Legal Order’ (2006) 47 Harvard International Law Journal 263.
7. Nijman (n 1).
8. Barbara Oomen, Moritz Baumgaertel, Elif Durmus¸, ‘Transnational City Networks and Migration Policy’, Report
presented to the Mayor’s Migration Council, March 2018,
20brief%20Dec%202018.pdf>.
Durmus¸31
set standards and sign charters,
9
declare themselves human rights cities, symbolically ratify inter-
national human rights treaties,
10
report to the UN on their progress on the SDGs,
11
and take public
positions opposing their national governments on issues of international law.
12
The city network
C40, named in reference to its State-counterparts G6 and G20, hasbeen engaging with international
institutions as prominent as the World Bank, with whom it has special funding agreements setting
minimum standards for cities wishing to join in, exercising ‘a form of legislative function’.
13
With insights from international legal theory, legal pluralism, and the original and ‘New’ New
Haven School of International Law, this article argues that local governments around the world
have today become the core of a ‘norm-generating community’ in Berman’s terms.
14
This article
offers a typology of city engagement with human rights (understood in a broad sense, including
practice and discourse along with international human rights law), grounded in empirical research.
The empirical desk research included social media analysis and a close reading into normative
documents created by city networks and international organisations on the issue. Field research
consisting of 5 months included participant observation in meetings of international organisations
and city networks, and twenty four interviews with officials of ten local governments (in Turkey,
Brazil and South Korea), officials of transnational city networks, international organisations, civil
society organisations, and with academics. The resulting typology explicates local governments’
engagement in the Formation of Human Rights,Implementation of Human Rights,Defence of
Human Rights, Coordination of Human Rights, Dissemination of Human Rights, and Contestation
of Human Rights (Table 1). Local governments engage with human rights both within the systemic
rules of inclusion of international law, seeking to expand these rules to allow official participation
of local governments, but they also engage with these rules of inclusion, in contestation of them. If
an observer of such engagement has a conservative understanding of the international legal system,
only few instances of engagement (those that play out within the rules of the system), will be taken
into account. Most of this vast engagement will then be considered outside the realm of human
rights, developing a body of normative engagement that can be called ‘human rights in the city’.
This body of norms and practices are inspired by, but develop in parallel to established interna-
tional human rights law (as a result of local governments’ general exclusion from international
legal processes), nevertheless interacting with and influencing the latter through a dissemination of
their elements amongst local, national, and international actors. These parallel orders would reflect
the classical sociological definition of legal pluralism. Alternatively, with the New Haven School
approach, understanding the international legal system as a larger, more inclusive, pluralist system
surpassing traditional State-centricism, it is possible to reflect more freely on the complete range of
9. See for instance the work of the European Coalition of Cities Against Racism (‘ECCAR’), the European Charter for
Safeguarding Human Rights in the City, and the Global Charter-Agenda for Human Rights in the City.
10. See Section 5.2 below.
11. Nicole Javorsky, ‘Why New York City Is Reporting Its Sustainability Progress to the UN’ (Citylab, 13 July 2018)
un/564953/>, accessed 20 December 2019.
12. See Section 5.3 below.
13. Helmut Phillip Aust, ‘Shining Cities on the Hill? The Global City, Climate Change, and International Law. Review of
Michele Acuto, Global Cities, Governance and Diplomacy. The Urban Link; Benjamin Barber, If Mayors Ruled the
World - Rising Cities, Declining Nation States; Sofie Bouteligier, Cities, Networks, and Global Environmental
Governance; Spaces of Innovation, Places of Leadership; Simon Curtis (ed.), The Power of Cities in International
Relations’ (2015) 26(1) The European Journal of International Law 255, 263.
14. Paul Schiff Berman, ‘A Pluralist Approach to International Law’ (2007) 32 Yale Journal of International Law 301.
32 Netherlands Quarterly of Human Rights 38(1)
engagement conducted by local governments with the system and norms of international law. In an
iterative process, depending on how ready international law will be to consider the contestation
created by local governments, the international legal system will either further pluralise to accom-
modate the challenges and critique posed to it, or remain restrictive and push local governments
into their parallel alternative normative order. Regardless of outcome, local governments have
developed into a norm-generating community in international law, furthering pluralism, with their
ultimate influence on positive international law to be evaluated in the coming years.
To explicate these findings, this article first provides a brief overview of varying understandings
of legal pluralism that are relevant for this analysis (Section 2), followed by an introduction to the
critiques of human rights and the relevance of the rise of local governm ents to these critiques
(Section 3). Section 4 offers a picture of the status of local governments in the current international
legal system, as State organs as well as non-State actors (‘NSAs’). Section 5 introduces a typology of
their engagement with international law, while Section 6 provides an analysis of this engagement.
2. LEGAL PLURALISM AND THE NEW HAVEN SCHOOL OF
THOUGHT
The term legal pluralism has been developed and used throughout the last decades in many
different understandings within different disciplines, such as anthropology, sociology, political
science, and law.
15
As the most efficient way to distinguish between different conceptualisations,
Twining suggests asking the question: ‘The plurality of what?’
16
The most dominant conceptualisation of legal pluralism, rooted in the anthropology and sociol-
ogy, has been that of ‘a situation in which two or more legal systems coexist in the same social
field’
17
or, ‘the coexistence of different normative orders within one socio-political space’.
18
Thus,
under this notion, there is a plurality of normative (or legal) orders applying to a given space and
time. ‘Law’ under this conception covers normative orders outside the ‘official’ or ‘State’ legal
system,
19
which is considered only one type of normative order among many others (official or
positive legal systems; customary normative systems; religious normativ e systems; economic/
capitalist normative systems; functional normative systems and community/cu ltural normative
systems).
20
Although earlier literature focuses primarily on the coexistence of, and interactions between
State and at least one type of non-State law, recent literature has also taken up the legal pluralism
between different official legal orders. The development of the notion of ‘constitutional legal
pluralism’ for instance, has evolved from the study of the sui generis legal order within the
European Union, with its multiple national and supranational constitutional systems coexisting
15. William Twining, ‘Normative and Legal Pluralism: A Global Perspective’ (2010) 20 Duke Journal of Comparative and
International Law 473.
16. ibid 511.
17. Sally Engle Merry, ‘Legal Pluralism’ (1988) 22(5) Law and Society Review 869, 870.
18. Franz von Benda-Beckmann, ‘Citizens, Strangers and Indigenous Peoples: Multiple Constructions and Consequences
of Rights, Resources and People’ (1997) 9 Law & Anthropology (International Yearbook for Legal Anthropology)
Special Edition: Natural Resources, Environment and Legal Pluralism 1, 1.
19. Twining (n 15) 485.
20. Brian Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global?’ (2008) 30 Sydney Law Review
375, 397-400.
Durmus¸33
with varying degrees of success in cooperation, coordination and coherence.
21
A further concep-
tualisation, ‘international legal pluralism’
22
refers to the proliferation of NSAs and the emergence
of new sub-fields of international law that might apply collectively to a given situation.
Staying with international law as our subject of study, the New Haven School has gone a step
further, to look beyond different categorisations of sub-fields, and to observe a complex system of
intertwined norm-generating communities contesting over alternative imaginations of the law,
which in turn have different levels of persuasive power and auth ority.
23
This process is very
similar to Koh’s ‘transnational legal process’, which is non-traditional (discarding distinctions
between the public/private and domestic/inte rnational), non-Statist, dynamic and normative.
24
Norms are created, interpreted , challenged and enforced – travelling, as they change, amo ng
different international actors and governance levels – within a constant multi-directional process.
25
The original Cold War-era New Haven School understood pluralism in the field of political
science as a ‘theory which opposes monolithic State power and advocates instead increased
devolution and autonomy for the main organisations that represent man’s involvement in soci-
ety’.
26
Led by Myres McDougal, Harold Lasswell, and Michael Reisman, the New Haven School,
along with some legal pluralist writings of Robert Cover, articulated that law’s normative power
does not solely flow from coercive power, but that law is ‘constantly constructed among various
norm-generating communities’.
27
Today’s reality of State and non-State communities generating
norms demonstrating varying degrees of formality, coercive power, and persuasive authority
reflects the world these scholars have described.
28
Normative claims brought forward by actors,
whether international legal persons or not, have the capacity to open up a debate on the articulation
of legal norms, and in most successful cases, these norms can be incorporated into positive, official
legal systems.
29
This pluralist process offers higher chances for error correction, and brings a wider
field of legal imagination and articulations to the attention of other actors.
30
Berman argues that
‘international human rights are now an important element of global legal consciousness, [ ...]
because of a long process of rhetorical persuasion, [ ...] and other forms of ‘soft law’ slowly
changing the international consensus, not because of positivist decree’.
31
Levit, in an example of ‘New’ New Haven scholarship,
32
demonstrates ‘bottom-up international
law-making’ inter alia through the example of Berne Union’s ‘General Understanding’ on export
credit insurance being adopted as binding by the WTO.
33
More recently, the development of the
right to housing has been successfully pushed forward by urban actors, particularly by United
21. Neil Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65(3) Modern Law Review 317.
22. William W. Burke-White, ‘International Legal Pluralism’ (2004) 25 Michigan Journal of International Law 963.
23. Berman (n 14).
24. Harold Hongju Koh, ‘Transnational Legal Process’ (1996) 75 Nebraska Law Review 181.
25. ibid.
26. Twining (n 15) 477-8.
27. Berman (n 14) 302.
28. ibid 303.
29. ibid 319.
30. ibid 303.
31. ibid 308.
32. Harold Hongju Koh, ‘Is There a ‘‘New’’ New Haven School of International Law?’, (2007) 32 Yale Journal of
International Law 559.
33. Janet Koven Levit, ‘Bottom-up International Lawmaking: Reflections on the New Haven School of International Law’
(2007) 32 Yale Journal of International Law 393, 401.
34 Netherlands Quarterly of Human Rights 38(1)
Cities and Local Governments (‘UCLG’) (world’s largest city network) and the Habitat Interna-
tional Coalition (a coalition of urban civil society organisations). Marcenko describes how local
governments became a central actor, together with the UN Habitat programme as well as the UN
Special Rapporteur on the issue, in assembling the right to housing and the concept of security of
tenure.
34
The Preamble of ‘Cities for Adequate Housing: A Municipalist Declaration’ reflects a
perfect example of local governments’ educated engagement in these normative processes:
Building on the milestones of the New Urban Agenda of Habitat III (Quito, 2016) and the momentum
of ‘The Shift’, a global initiative on the right to housing, the signatory cities below take part in this
High-Level Political Forum of the United Nations to follow up on Sustainable Development Goal 11
[...], with the support of UCLG [ ...], the Office of the High Commissioner for Human Rights, and
Leilani Farha, UN Special Rapporteur on the right to housing.
35
This demonstrates how alternative imaginations of the law can travel in different directions to
affect the legal consciousness of different actors, to finally possibly influence the dominant norm.
Berman, terming the process ‘global legal pluralism’
36
explains,
[L]ocal’ norms are always contested, even within their c ommunities, and ‘local’ actors may well
invoke ‘non-local’ norms for strategic or political advantage. In addition, local actors deploying or
resisting national or international norms may well subvert or transform them, and the resulting trans-
formation is sure to seep back ‘up’ so that, over time, the ‘international’ norm is transformed as well.
37
The analyses in this article will be guided by the classical definition of legal pluralism as
‘coexisting normative orders’ and the (New) New Haven School conceptualisation addressing the
inclusive and pluralist processes of norm-generation. The most important difference between these
two definitions lies in individuation, a foundational question of the general theory of norms.
38
While the anthropological conceptio n assumes a plurality of distinct normative orders (albeit
interacting in many ways), the pluralism of the New Haven School assumes a single complex
normative order which is pluralist in its actors, sources and norm-generating processes.
3. LOCAL GOVERNMENTS AND CHALLENGES AGAINST HUMAN
RIGHTS
Since their codification following World War II, human rights have faced criticism from many
different groups, which could be briefly summarised in the following list:
39
Criticism against their
34. Miha Marcenko, ‘Global Assemblage of the Right to Adequate Housing: Security of Tenure and the Interaction of City
Politics with the Global Normative Discourse’, (2019) 51(2) Journal of Legal Pluralism and Unofficial Law 151.
35. ‘Cities for Adequate Housing – A Municipalist Declaration of Local Governments for the Right to Housing and the
Right to the City’, signed 16th July 2018 in New York, .
36. Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (CUP 2012).
37. Berman (n 14) 311.
38. Twining (n 15) 479.
39. David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2002) 15 Harvard Human Rights
Journal 101; Barbara Oomen, ‘Introduction’, in Barbara Oomen, Martha F Davis, and Michele Grigolo (eds.), Global
Urban Justice: The Rise of Human Rights Cities (CUP 2016).
Durmus¸35
roots in liberal Western ideology,
40
their claim of universality (led primarily by cultural relati-
vists),
41
their legalistic nature, being too technical – or abstract and aspirational rather than
practical and close to the people,
42
their individualistic and adversarial character, rather than a
community-based approach,
43
their State-centric shortcomings in addressing privatisation in ser-
vice-provision,
44
and their effectiveness, (failing to protect those most in need of it).
45
Much of this criticism is linked to the State-centric and top-down image of human rights law,
especially through arguments that human rights do not accommodate local community values and
cultural differences and thus lack ownership and effectiveness. According to these critics, over-
reliance on the State, its institutions and on legal incorporation of treaties into domestic law as the
primary tool for rights realisation proves ineffective when other actors or norms have higher local
legitimacy than the State and human rights.
46
This state-centric and legalistic approach neglects the
potential of NSAs in communicating and realising rights in culturally appropriate ways and
creating ‘grassroots support for rights’.
47
In this perceived clash between the public and the private,
the State and non-State actors, local governments constitute an ideal bridge between (and fitting
into) the two notions,
48
simultaneously demonstrating the shortcomings of the distinction. The
preamble of the European Charter on Safeguarding Human Rights in the City (signed by more than
400 local governments), for instance, elaborates:
Why, on the threshold of the 21st century, a European Charter for Human Rights in the City? The
Declaration of Human Rights (1948) is universal. [ ...] The European Convention (1950) offers what
we call a legal guarantee. However, there exist many rights which are still not ‘effective’ and the
citizens find it difficult to see their way through the labyrinth of legal and administrative procedures.
How to give a better guarantee? How to act more effectively? [ ...] This is where the City comes in.
49
40. Andreas Follesdal, Johan Karlsson Schaffer, and Geir Ulfstein, The Legitimacy of International Human Rights
Regimes: Legal, Political and Philosophical Perspectives (CUP 2013).
41. Abdullahi Ahmed An-Na’im, ‘Universality of Human Rights: Mediating Paradox to Enhance Practice,’ in Midrag
Jovanovic and Ivana Krstic (eds), Human Rights Today – 60 Years of the Universal Declaration (Eleven International
Publishing 2010) 29; Karen Engle, ‘Culture and Human Rights: The Asian Values Debate in Context’ (1999–2000)
New York University Journal of International Law and Politics; Michael Freeman, ‘Universalism of Human Rights and
Cultural Relativism’, in Scott Sheeran and Sir Nigel Rodley (eds.), Routledge Handbook of International Human
Rights Law (Routledge 2013).
42. Kennedy (n 39) 111. See also Laurence Helfer, ‘Overlegalizing Human Rights: International Relations Theory and the
Commonwealth Caribbean Backlash Against Human Rights’ (2002) 102 Colombia Law Review 1832; Julie Fraser,
‘Challenging State-Centricity and Legalism: Promoting the Role of Social Institutions in the Domestic Implementation
of International Human Rights Law’ (2019) 23(6) The International Journal of Human Rights 974, 978.
43. Kennedy (n 39) 113; Eileen Babbit and Ellen Lutz (eds.) Human Rights and Conflict Resolution in Context (Syracuse
University Press 2009).
44. Koen de Feyter, Privatisation and Human Rights in the Age of Globalisation (Intersentia 2005).
45. Michael Ignatieff, Ordinary Virtues (Harvard University Press 2017); Hafner-Burton and Tsutsui, ‘Human Rights in a
Globalizing World: The Paradox of Empty Promises’ (2005) 110 American Journal of Sociology 1373; Stephen
Hopgood, The Endtimes of Human Rights (Cornell University Press 2013); Michael Goodhart (ed.), Human Rights –
Politics and Practice (OUP, 2nd ed., 2013.); Eric A. Posner, The Twilight of Human Rights Law (OUP 2014).
46. Fraser (n 42) 977.
47. ibid.
48. See the next Section.
49. European Charter for Safeguarding Human Rights in the City, Preamble, at 1, signed in Saint Dennis, 18 May 2000.
< https://www.uclg-cisdp.org/sites/default/files/CISDP%20Carta%20Europea%20Sencera_FINAL_3.pdf.>.
36 Netherlands Quarterly of Human Rights 38(1)
In social sciences, the city, or rather the ‘global city’ has attracted wide academic interest since
the 1990s, famously led by Saskia Sassen.
50
Through the trends of urbanisation, globalisation and
decentralisation,
51
cities in many countries have grown in population and economical power, while
at the same time being bestowed upon with new legal obligations – especially in the realisation of
social and economic rights – within their own national settings.
52
Diverse, economically strong
metropolitan cities have characteristically adopted more liberal political views.
53
Two global
issues on which nation-States have particularly disappointed the international community have
been primary playing fields for cities: climate change, and migration.
54
Localities in the US have
been implementing parts of the Kyoto Protocol locally, without federal government ratifica-
tion.
55
More recently, when President Trump pulled out of the Paris Climate Agreement, many
regional and local governments, including New York and San Francisco, have made public
commitments to uphold the Paris commitments to their utmost power.
56
The Sustainable Devel-
opmentGoalshavealsoseenstrongadvocacyand support among local governments, with New
York City becoming the first local government to report its progress to the UN, a duty envisaged
for States alone.
57
Local government engagement could provide a response to critiques of human rights in many
ways. Local governments are argued to be uniquely placed to localise human rights
58
and bridge
the gap between the universality and cultural relativism poles. They are actors often able and
willing to travel between physical and discursive spaces of the local and international levels, and
offer hands-on experience on the realisation of human rights, relevant for the international
community when codifying human rights norms capable of tangible protection. With their
pragmatic perspectives,
59
they also might bring together different actors and segments within
localities (Coordination of Human Rights), and establish human rights as a normative basis for
co-habitation in the city, diffusing its adversarial rights-holder vs duty-bearer nature. Of course,
none of this positive potential negates the flip side of decentralisation and localisation, namely
that local governments can also opt to use their competences and abilities to take regressive
stances against the requirements of human rights.
60
However, considering the lack of scholarship
mapping the positive potential of local engagement with and for human rights, regressive
50. Saskia Sassen, The Global City (Princeton University Press, 1990, 2nd Ed, 2001).
51. See Nijman (n 1) 12.
52. Michele Acuto, Global Cities, Governance and Diplomacy: The Urban Link (Routledge 2013).
53. Michele Acuto, ‘City Leadership in Global Governance,’ (2013) 19 Global Governance: A Review of Multilateralism
and International Organizations 481.
54. See, Porras, ‘The City and International Law: In Pursuit of Sustainable Development’, (2009) 36(3) Fordham Urban
Law Journal 537.
55. Levit (n 33).
56. Audrey Comstock, ‘US Cities and States Want to Implement Paris Climate Accord Goals. It’s Not That Simple.’
(Washington Post, 13 June 2017)
and-states-want-to-implement-the-paris-climate-accord-goals-its-not-that-simple/> accessed 20 December 2019.
57. Javorsky, (n 11).
58. Simon Hoffman, ‘The UN Convention on the Rights of the Child, Decentralisation and Legislative Integration: A Case
Study from Wales’ (2019) 23(3) The International Journal of Human Rights 374, 376.
59. Benjamin Barber, If Mayors Ruled the World - Rising Cities, Declining Nation States (Yale University Press 2014).
60. Chiara Marchetti, ‘Cities of Exclusion: Are Local Authorities Refusing Asylum Seekers?’ and Maurizio Ambrosini,
‘The Local Governance of Immigration and Asylum: The Policies of Exclusion as a Battleground’, in Maurizio
Ambrosini, Manlio Cinalli, David Jacobson (eds.), Migration, Borders and Citizenship: Between Policy and Public
Spheres (Palgrave Macmillan 2019).
Durmus¸37
policies of local governments will be outside the scope of this article. Regar dless, any human
rights violations by local governments would fall under Implementation (which includes the
element of responsibility), while any alternative imaginations of human rights that seem detri-
mental to its essence would constitute Contestation of Human Rights.
4. THE STATUS OF LOCAL GOVERNMENTS IN INTERNATIONAL
LAW: THE DUAL SUB-STATE AND NON-STATE CHARACTER
From an international legal perspective, local governments’ engagement with international law
consistently reflects the unique nature of local governments as both (sub-)State and non-State
actors, the positions constituted in each case by varying proportions of these two identities.
61
Their
classification as (sub-)State actor is based on the law on state responsibility, where actions and
omissions of State organs can be attributed to the State.
62
What constitutes a State org an is
determined according to the internal organisation of the State.
63
Local governments, while posses-
sing varying degrees of autonomy from central governments, are considered State organs in the
constitutions of modern nation-States.
64
This classification, while insufficient in explaining all normative engagement of local govern-
ments with international law, offers nevertheless some venues to understand the relevance of local
government practice. As discussed under Formation of Human Rights in Section 5, local govern-
ments could be considered to contribute to the development of State practice and opinio juris,
elements of customary international law under Article 38(1)(b) of the Statute of the International
Court of Justice (‘ICJ’).
65
Some literature on the topic discusses the possibility of sub-State actors
producing State practice.
66
A thorough analysis of local governments’ possible contributions to the
development of State practice and/or opinio juris, is yet to be made. Whether other primary sources
of international law, treaties and general principles of law, would ever recognise local govern-
ments’ contributions from a positive legal perspective, is another question only time and further
research can answer. Also worthy of future research is the position of local governments with
special status, such as some Belgian cities with capacity to enter into international treaties
67
and
City States (such as Berlin, Hamburg, Geneva, Zurich, Singapore).
68
61. Nijman (n 1).
62. Aust, ‘Shining Cities’ (n 13); ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts,
2001, Article 4.
63. ibid ILC, Article 4(2).
64. United Nations Human Rights Council, Role of Local Government in the Promotion and Protection of Human Rights –
Final Report of the Human Rights Council Advisory Committee, UN Doc. A/HRC/30/49, 7 August 2015, para 42.
65. Statute of the International Court of Justice, Article 38(1), 1945.
66. Although some scholars have argued that State practice could only be created by State organs responsible for foreign
relations (primarily the Foreign Ministry) (Karl Strupp, ‘Les r`egles g´en´erales du droit de la paix’ (1934) 47 Recueil des
Cours 257, 313-315; Dionisio Anzilotti, Cours de Droit International (trans. Gidel) 74-75) it is widely accepted today
that this is a far too restrictive approach (Maurice Mendelson, The Formation of Customary International Law
(Martinus Nijhoff 1999), 198). A more modern understanding includes practice of all State organs relevant for the
subject-matter of the international norm created (economy, aviation, environment etc).
67. Belgian Constitution, Article 167(1). See also Quentin Pironnet, ‘Treaty Making Power in Belgian Constitutional Law:
The Case of CETA’, presented in ‘‘‘Understanding Federalism’’ Swiss, Belgian & EU Perspectives on Federalism
Trainee to Trainee Event’, 12 June 2018, Brussels, Belgium accessed 28
December 2019.
68. UN HABITAT, The Challenge of Local Government Financing in Developing Countries (2015), 65-75.
38 Netherlands Quarterly of Human Rights 38(1)
Coming to the concept of the ‘non-State actor’ (‘NSA’), despite the multi-actor and pluralist roots
of international law and relations,
69
State-centric positivism, referencing the infamous ‘Westphalian
Order’ (forgetting that the Treaty of Westphalia was signed by cities as well) has long accepted
States as sole subjects, and other entities as objects of international law.
70
The conception of
international legal persona lity as State-exclusive has however changed at the late st with ICJ’s
Reparations for Injuries Advisory Opinion, establishing that the UN enjoyed a limite d kind of
international legal personality, in order to fulfil its obligations in accordance with the needs and
functioning of the international order.
71
Following international organisations; individuals, peoples,
multi-national companies, armed non-State groups, and NGOs have been considered for their role
and status in international law, and referred to, collectively, as non-State actors.
72
Without entering
into the discussions regardingthe shortcomings and theState-centricity of theterm itself,
73
this article
utilisesit for the purposes offoregrounding the autonomousactivitiesof local governments as opposed
to their activitiesas a State organ (their sub-State character). Parallel to the pluralisation ofactors in
internationallaw, the last decadeshave also witnessed a declinein the usage of traditionalforms of law
listedin Article 38(1) of the ICJStatute as sources of international law,and an increased preferencefor
non-binding commitments, guidelines, or so-called ‘soft law’.
74
International law-making capacity,
once accepted as a prerogative of States, isnow hesitantly considered to be shared, atleast by other
recognised subjects of internationallaw, such as international organisations.
Local governments have fallen largely outside the literature on NSAs, most probably due
to their position within the organisation of the State, as opposed to the other actors mentioned
above. However, their engagement with international law and human rights cannot be
explained by their (sub-)State character alone, and parallels the engagement of other, more
familiar NSAs. Local governments have for instance been creating normative commitments
that bridge the realms of policy, discourse and law, while using the format and language of
international law to varying degrees. The European Charter for Safeguarding Human Rights in
the City,
75
the Global Charter-Agenda for Human Rights in the City,
76
the 10 Principles of
the European Coalition of Cities Against Racism,
77
the Belfast Declaration/Charter of Healthy
69. Nijman (n 1).
70. Noemi Gal-Or, Cedric Ryngaert, Math Noortmann (eds.), Responsibilities of the Non-State Actor in Armed Conflict
and the Market Place (Brill 2015) 371; Cedric Ryngaert (ed.), Non-State Actors in International Law: from Law-Takers
to Law-Makers (Routledge 2010); August Reinisch, Cedric Ryngaert, Math Noortmann (eds.), Non-State Actors in
International Law (Hart 2015).
71. International Court of Justice, Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion,
11 April 1948.
72. See (n 70).
73. Philip Alston, ‘The ‘‘Not-A-Cat’’ Syndrome: Can the International Human Rights Regime Accommodate Non-State
Actors?’ in Philip Alston (ed.), Non-State Actors and Human Rights (OUP 2005). Andrew Clapham, ‘The Use of
International Human Rights Law by Civil Society Organisations’ in Scott Sheeran and Sir Nigel Rodley (eds.) Rou-
tledge Handbook of International Human Rights Law (Routledge 2013).
74. Prosper Weil, ‘Towards Relative Normativity in International Law’ (1983) 77 American Journal of International Law
413.
75. European Charter, (n 49).
76. Global Charter-Agenda for Human Rights in the City, adopted in Florence, December 2011 by the UCLG World
Council .
77. ECCAR, ‘10 Points Action Plan. Toolkit for Equality: City Policies Against Racism’, February 2017, Graz, Stockholm,
Potsdam .
Durmus¸39
Cities,
78
The Mayors’ Marrakech Declarationadopted in parallel to the GlobalCompacts for Migra-
tion and Refugees,
79
Cities for Adequate Housing: The Municipalist Declaration for the Right to
Housing and the Rightto the City,
80
the Manifestoof the Forum of the European Local Communities
Engaged inRefugees’ Welcoming and FirstInclusion,
81
and the GlobalGreen New Deal endorsed by
C40 in collaboration with the Fridays for Future Movement and other stakeholders for climate,
82
constituteonly a fraction of norms generated by localgovernments and their networks.Some of these
normative documents entail the language of rights and obligations, discuss their own legal valueand
bindingness,and foresee internal and external monitoringmechanisms for the tangiblecommitments
they entail.
83
This parallels the proliferation of codes of conduct and principles of good governance
produced by transnational companies (‘TNCs’) and major international NGOs.
84
Similarly, local
governments are enjoying a recent, gradual inclusion into mainstream State-centric law-making
mechanisms,as discussed inFormation of Human Rights,similar to the processesof the slow inclusion
of actors such as IOs, TNCs and NGOs, at least as stakeholders, in negotiations and adoptions of
international norms. Both the autonomous norm-generation and the inclusion in state-centric law-
making mechanisms allow local governments to participate in the contestation and development of
internationalnorms in a general sense. The contestation and development howeverconcerns not only
the creation of norms but also their realisation, as local governments develop and adopt non-legal
means of realisation and implementation through various innovative means,
85
just as civil society
contributes to the localisation of international norms and the creation of ownership among local
communities.
86
Additionally, just as accountability of TNCs and armed opposition groups was the
main entry point for discussion of such actors in international law,
87
the more conserv ative interna-
tional organisations such as the UN Human Rights Committee (‘UNHRC’) started to look at local
governments first from the prism of their human rights obligations.
88
Whether local governments
could ever obtaininternational legal personality, whichwould entail the capacity to holdindependent
rights, obligations, as well as the prerogatives of law-making and law-enforcement (legal standing
78. Belfast Charter for Healthy Cities .
thy-cities.pdf?ua¼1>.
79. MarrakechMayors Declaration:Cities WorkingTogether for Migrants andRefugees, adopted at the5th Mayoral Forum on
HumanMobility, Migration and Development,8 December 2018,presented at the IntergovernmentalConference toadopt
the Global Compactfor Safe, Orderly and Regular Migration (10-11 December 2018) andat the UNGA (17 December
2018), om.int/news/global-mayors-unite-support-human-mobility-migration-and-development>.
80. Cities for Adequate Housing, (n 35).
81. Manifesto, Forum of the European Local Communities Engaged in Refugees’ Welcoming and First Inclusion, Pandpas
Project, Ljubljana 14-15 Febrauary 2019.
82. C40, Press Release, ‘Mayors Announce Support for Global Green New Deal; Recognize Global Climate Emergency’
83. For instance, the European Charter for Safeguarding HR in the City discusses its own legal value and obliges internal
and external monitoring mechanisms to be set up and utilised, the Global Charter Agenda includes a framework of
short-term and mid-term steps to the taken in realisation of the Rights enshrined, and the member cities of the Coalition
of Cities Against Racism are monitored by the transnational network in regular internals on their compliance with the
principles of the Coalition.
84. August Reinisch, ‘The Changing International Legal Framework for Dealing with Non-State Actors’, in Philip Alston
(ed.), Non-State Actors and Human Rights (OUP 2005), 50-55; Clapham, (n 73).
85. Oomen et al (n 39).
86. Fraser (n 42) 975; Reinisch (n 84) 67.
87. Gal-or et al (n 70).
88. HRC (n 64).
40 Netherlands Quarterly of Human Rights 38(1)
before courts),and how this question is dependent on differentconstitutional dispensationsand local
government competences around the world, are questions worth tackling, attracting increasing and
well-deserved attention by international and constitutional lawyers.
89
5. A TYPOLOGY OF LOCAL GOVERNMENT ENGAGEMENT WITH
HUMAN RIGHTS
Following a grounded data collecti on process from desk and field research (consisting of 24
interviews with officials of 10 different local governments in Turkey, South Korea, and Brazil,
of NGOs, international organisations and city networks, as well as participant observation in 5
major meetings of city networks and international organisations) this typology has been created
with an intention of offering a systematic – albeit non-exhaustive – mapping of the rich normative
engagement of local governments with human rights and international law. This data was collected
as part of the Cities of Refuge project exploring the role of human rights as law, praxis and
discourse in the reception and integration of refugees by local governments in six European
countries and in transnational fora.
90
Desk research was conducted into international organisa-
tions’ resolutions on local governments and human rights, publications and social media activity of
transnational city networks, and of policies and legislation of local governments involved. Qua-
litative data collected through field research does not claim any generalisability, nor is it based on a
representative sample of local governments. Instead, the grounded theory approach allows for the
deduction of certain ideal types from the data, followed by theoretical sampling to achieve a
saturation point in which no new types of engagement were emerging from new data.
91
As is the
limitation of typologies in general, this typology will not be able to cover every form of city
engagement, and will resort to some degree of simplification. Nevertheless, such a mapping can
arguably contribute to the research on cities and international law by offering scholars a contem-
porary overview of the normative engagement of local governments.
Frug and Barronpioneered scholarshipmapping local government relationships withinternational
law, focussing somewhat conservatively on the subject-object distinction in international law, pla-
cing cities as objectsregulated by the law, and stressing the dangers of a possiblerecognition of their
actorhood.
92
Aust on the other hand, in his dissertation ‘Das Recht derGlobal Stadt’ identified three
general formsof internationalisationof local governments’ activities: horizontalnetworking between
local governments, vertical cooperation between local governments and international organisations,
and the reference in local politics and legislation to international norms.
93
Marx et al. presented the
different functions of local governments in localisingfundamental rights within EU system,as rule-
maker, rule-intermediary, service provider, policy supporter and policy coordinator.
94
89. See the upcoming Special Issue of the European Yearbook on Constitutional Law, Volume 2 (2020) on ‘The City in
Constitutional Law’.
90. www.citiesofrefuge.eu.
91. Kathy Charmaz, Constructing Grounded Theory: A Practical Guide Through Qualitative Analysis (SAGE 2006).
92. Frug and Barron, ‘International Local Government Law’, (2006) 38 The Urban Lawyer 1.
93. Helmut Aust, Das Recht der Globalen Stadt (Mohr Siebeck 2017), 8-12. While Aust makes clear that his intention is
not to create a typology as it would do injustice to the vast variety of local engagement with international law, he
nonetheless presents three empirical ideal types as a general way of organising this engagement.
94. Axel Marx, Nicolas Hachez, Katrien Meuwissen, Pierre Schmitt, Jakub Jaraczewski, Tamara N. Lewis, Kolja Raube,
Joanna Roszak, Klaus Starl, Dolores Morondo Taramundi, Anna-Kaisa Tuovinen, Amy Weatherburn, ‘Localizing
Durmus¸41
Looking into previous literature on localisation of human rights, though not necessarily the role
of local governments, Merry famously coined the term ‘vernacularisation’ in understanding how
international norms travel and are made familiar to local co ntexts by ‘translators’ or middle-
(wo)men familiar to both the local and international social fields.
95
De Feyter explored the success
of the language of rights (over alternative discourses) in shifting domestic power balances and the
role of these local struggles in reconstituting global human rights norms.
96
Hoffman, discussing
the relationship between decentralisation, legislation and the realisation of the Convention on the
Rights of the Child, linked a normative approach regarding domestic implementation of interna-
tional treaties to the concept of localisation of human rights.
97
He argued that a normative rather
than regulative approach to legal integration, in the context of decentralisat ion, would enable
‘interpretative communities’
98
and help create a ‘cultural acceptance’ of the norms avoiding over-
reliance on individual judicial claimants, improving overall realisation.
99
This typology will contribute to the existing debates in a number of ways. First, as local
governments’ engagement with international law and human rights is expanding exponentially,
this typology will be able to present a more up-to-date picture of the complexity and reach of the
engagement. This typology will also opt out of the subject-object discussion and the rigid focus on
the form (legislation, discourse etc) and fora (local vs international etc) of engagement, and look
instead into what the engagement constitutes substantively for human rights. In mapping only local
government activity, the typology does not cover how the locality serves as an ‘arena’ or ‘hub’ for
human rights localisation,
100
where local actors interact with each other and contest the meaning of
human rights without the direct engagement of the municipality.
Table 1. A Typology of Local Government Engagement with Human Rights.
A Typology of Local Government Engagement with Human Rights
Formation of Human Rights
Implementation of Human Rights
Defence of Human Rights
Coordination of Human Rights
Dissemination of Human Rights
Contestation of Human Rights
Fundamental Rights in the European Union: What is the Role of Local and Regional Authorities, and How to
Strengthen It?’ (2015) 7(2) Journal of Human Rights Practice 246.
95. Sally E. Merry, ‘Transnational Human Rights and Local Activism: Mapping the Middle’ (2006) 108(1) American
Anthropologist 38.
96. Koen De Feyter, Stephen Parmentier, ‘Introduction: Reconsidering Human Rights from Below’, in Koen de Feyter,
Stephen Parmetier, Christiane Timmerman, and George Ulrich (eds.), The Local Relevance of Human Rights (CUP,
2011).
97. Hoffman (n 58), 378.
98. John Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation’ (2010) 23
Harvard Human Rights Journal 1; cited in Hoffman (n 58) 378.
99. Hoffman (n 58) 377.
100. Barbara Oomen, Elif Durmus¸, ‘Cities and Plural Understandings of Human Rights: Agents, Actors, Arenas’ (2019)
51(2) Journal of Legal Pluralism and Unofficial Law 1 .
42 Netherlands Quarterly of Human Rights 38(1)
5.1. FORMATION OF HUMAN RIGHTS
The Formation of Human Rights entails the incidents in which local governments have sought
opportunities to directly contribute to official processes of law-making at the international level,
joining States and international organisations. Normative formulations by local governments in
fora not including central governments are included under the category Contestation of Human
Rights. Perhaps the most significant of events demonstrating Formation were the processes leading
to the codification of the content of the Right to Housing.
101
In the Habitat conferences, the Global
Campaigns for Secure Tenure and Urban Governance, and in other formal and informal processes,
local governments played a significant role in co-creating the positive legal content of the right to
adequate housing.
102
Less self-evident and more difficult to track, local governments could potentially be contribut-
ing to the development of customary international law, through the producti on of (sub-)State
practice as well as opinio juris, as discussed in Section 5. Instances falling under Defence of
Human Rights, of local governments pushing back on national policies regressing human rights
sometimes gain international attention and response, which could constitute opinio juris when
analysed retrospectively.
The incorporation of SDG 11 in the Agenda 2030 and the Sustainable Development Goals, as
well as the lobby for and the subsequent inclusion of the role for local governments in both the
Global Compacts for Migrants and Refugees are examples worth mentioning, although they may
constitute soft law created through State-centric processes rather than binding law. Local govern-
ments’ Formation of Human Rights only mirrors and adds to their efforts and successes in other
fields of international law, such as international environmental law, with their success of incor-
porating the role of local governments in the text of the Paris Climate Agreement,
103
in addition to
being a driving force behind its adoption process as a whole.
104
5.2. IMPLEMENTATION OF HUMAN RIGHTS
Perhaps the least controversial and most ubiquitous engagement with human rights concerns local
governments implementing human rights. ‘Implementation’ here, aligning with the sub-State
character of local governments, refers to the efforts to realise established positive international
(rather than domestic) legal norms created in a State-centric manner.
Some of the most significant examples of this engagement are those relating to the practice of
so-called ‘Human Rights Cities’ with prominent trailblazers such as Rosario, Buenos Aires,
Utrecht, Graz, Barcelona and Gwangju.
105
Many cities, large and small, have symbolically ratified
international treaties, and even created local enforcement policies which have been much more
successful than national ones.
106
San Francisco for instance, has incorporated CEDAW into one of
101. Marcenko (n 34).
102. ibid.
103. C40 Blog, ‘From Paris to Quito, Mayors are Leading on our Sustainable Future’, (14 October 2016)
c40.org/blog_posts/from-paris-to-quito-mayors-are-leading-on-our-sustainable-future>.
104. Parlementaire Monitor, ‘COP21: Success of Climate Change Agreement Rides on Empowering Local Government’
(14 October 2015) ¼vg9hm2g
38wdd&tab¼1&start_tab0¼60>.
105. Oomen et al. (n 39).
106. Oomen and Baumgaertel, (n 4) 2.
Durmus¸43
their local ordinances, implementing the Treaty within its jurisdiction ever since.
107
Graz has
adopted the CRPD, and made institutional changes including the establishment of a council
responsible for its implementation. This council has made a call for recommendations on this
issue, collecting hundreds of recommendations from the citizens of Graz, which were analysed,
categorised, and brought together in a local implementation plan of the CRPD for the city of
Graz.
108
The Human Rights Cities project in Turkey led by the Raoul Wallenberg Institute and the
Association of Municipalities of the Turkic World guide local governments in conducting human
rights-sensitive strategic planning and budgeting.
109
Local ombudspersons, anti-discrimination
offices, or simply enacting local policies and legislation with reference to (international) human
rights law, are all different forms in which implementation can take place.
Local governments’ human rights obligations were also in the agenda of important international
bodies such as the Council of Europe Congress of Local and Regional Authorities, which created a
set of human rights indicators at the local level;
110
and the United Nations Human Rights Council
(UNHRC) adopting resolutions on the role of local governments in the promotion and protection of
human rights.
111
The latter confirmed that local governments do indeed have obligations under
international human rights law and that ‘any failure to comply with these responsibilities will entail
their liability under national law as well as international responsibility of the State as a whole’.
112
As such, the Council emphasises the sub-State character of local governments, reminding that ‘the
State is one single entity, regardless of its unitary or federal nature and internal administrative
division’.
113
The Council holds that only the State can enter into international obligations, be
brought before international courts, and submit reports on their progress to treaty bodies; although
States and local governments possess ‘shared and complementary duties’,
114
which requires local
governments to enjoy the ‘necessary powers and financial resources’ in order to realise the State’s
international obligations that fall within their constitutional competences, while the State retains
primary responsibility.
115
As can be expected, this implementation also entails varying degrees of interpretation of
international norms. When local governments give content to rights, it can at times be difficult
to distinguish Implementation from Formation of Human Rights, especially when it comes to the
development of the customary content of the norm. The development of customary international
law and the interpretation of treaty obligations are both dialectic processes in which the imple-
mentation (in a certain way) or non-implementation of a norm can ex post facto be considered an
alteration of that norm or the crystallisation of another.
107. Martha Davis, ‘Cities, Human Rights and Accountability: The United States Experience’, in Oomen et al (eds.) supra
note 40; Haidi Haddad, Presentation in ACUNS Conference, Rome, July 2018.
108. Based on information provided by Klaus Starl and municipal officials of the City of Graz during a Seminar on Human
Rights Cities – The Swedish and Austrian Experiences in March 2018, Graz.
109. International Conference on Human Rights Cities, Istanbul, 23-24 November 2018.
110. Council of Europe, Congress on Local and Regional Authorities, Resolution 334 (2011) adopted on 20 October 2011,
Annex ‘Explanatory Memorandum’, Lars O. Molin, .
111. HRC (n 64).
112. ibid para 25.
113. ibid para 17.
114. ibid Section 3.
115. ibid paras 21-23.
44 Netherlands Quarterly of Human Rights 38(1)
5.3. DEFENCE OF HUMAN RIGHTS
At times, local governments engage with human rights not in their capacity as an administrative
State organ, but in their particular local identity (non-State, rather than sub-State). This can be
observed best when cities take rebellious stances towards national governments and their policies,
in Defence of Human Rights. Such defensive positions arise both within local government com-
petences in a certain domestic constitutional context and extra-legally.
116
Local governments may
act in a space of legal ambiguity or silence, using it strategically in their favour to stand up for
human rights;
117
stay within their explicit legal competence but go out of their way to make a
pronounced stance in Defence of Human Rights; or even step outside their legal constitutional
competences in order to take a stance. To clarify, this typology considers an act as Defence of
Human Rights when the stance taken is public, political, and aims to stand against any law, policy
or discourse considered to be in violation with human rights. Whether this stance then reaches
success in altering that law, policy or discourse, or whether it is within the local government’s
constitutional competences to react in such a way, is not of consideration.
In the area of refugee reception and integration, local governments have taken proactive
stances, such as Utrecht in the ‘Bed, Bad & Brood’ discussion with the Dutch national government.
When in 2012 the national government prohibited municipalities to provide services to undocu-
mented migrants, many Dutch municipalities including Utrecht protested against this decision,
118
leading to the European Committee on Social Rights to decide in 2014 that this practice would
violate Netherlands’ obligations under the European Social Charter.
119
Utrecht is also prominent
for protests it hosted and organised when the Dutch g overnment declared Afghanistan a safe
country and started planning deportations of Afghani persons in the country.
120
When the former Italian Minister of Interior Affairs Salvini declared that Italy would not accept
any further boats carrying migrants and refugees rescued in the Mediterranean sea, southern Italian
cities such as Palermo, Naples, Messina and Reggio Calabria expressed protest and defied the
policy, saying that they were ‘ready to disobey Salvini’s order and allow Aquarius [the migrant
rescuing ship] to dock and disemb ark in their sea ports.’
121
The Mayor of Palermo, Leoluca
Orlando stated:
116. Barbara Oomen, Moritz Baumgaertel, Sara Miellet, Elif Durmus¸, Tihomir Sabchev, ‘Strategies of Divergence: Local
Authorities, Law and Discretionary Spaces in Migration Governance’, submitted to the Journal of Refugee Studies as
part of a Special Issue on Uncertainty, expected publication in 2020.
117. Such as local governments in Turkey interpreting Article 14 of the Law on Local Governments as allowing them to
provide services to Syrians under temporary protection, when the law is highly ambiguous.
118. VVD and PvdA, ‘Bruggen Slaan: Regeerakkoord VVD – PvdA’, 29 October 2012, http://www.parlement.com/
9291000/d/regeerakkoord2012.pdf, at 30 (accessed 22 July 2017). For extensive background see Pelle de Meij, ‘Het
Recht Van Vreemdelingen Op Een Menswaardig Bestaan En De Rol Van De Rechter’, (2015) 90 Nederlands Jur-
istenblad; PICUM (ed.), Book of Solidarity: Providing Assistance to Undocumented Migrants: Belgium, Germany, the
Netherlands, the UK (De Writter 2002).
119. ESCR, European Federation of National Organisations working with the Homeless (FEANTSA) vthe Netherlands,
Complaint No. 86/2012, published 10 November 2014. See also ESCR, Conference of European Churches (CEC) v
the Netherlands, Complaint No. 90/2013, published 10 November 2014.
120. See European Charter (n 49).
121. Patrick Wintour, Lorenzo Tondo and Stephanie Kirchgaessner, ‘Southern Mayors Defy Italian Coalition to Offer Safe
Ports to Migrants’ (The Guardian, 11 June 2018),
ports-to-rescue-boat-with-629-migrants-on-board> accessed 28 April 2019.
Durmus¸45
Palermo in ancient Greek meant ‘complete port’. We have always welcomed rescue boats and vessels
who saved lives at sea. We will not stop now. [...] Salvini is violating the international law. He has
once again shown that we are under an extreme far-right government.
122
This last stance was an example of defiance through an attempted extra-legal step, such as
opening the ports to migrant ships, whereas this required the cooperation of the Italian Coastguard,
which is under command of the central government. The cities’ statements thus had no direct
practical effect, however, these statements made news both in traditional and social media, and
continued to raise awareness and protest about the situation, contributing to the efforts of civil
society and international organisations in condemning Salvini’s policy.
5.4. COORDINATION OF HUMAN RIGHTS
A type of engagement with human rights that is quite ubiquitous, though not necessarily as public
as Defence, is the local Coordination of Human Rights. Local governments, in times of decen-
tralisation, privatisation and globalisation are often in the difficult position of being responsible for
the provision of more services with less resources, struggling in a competitive market in its
commercial activities. However, the local government’s unique proximity to and likely awareness
of the locality’s and citizens’ needs, as well as its potential to be well connected with local actors
such as businesses, civil society, national institutions’ local offices, hospitals, schools, universities
and vulnerable persons provide invaluable tools to overcome the challenges of human rights
realisation for the local government.
123
In line with the principle of good governance, local governments often consult stakeholders
before developing policies in res ponse to complex situations relating to human rights. While
Implementation of Human Rights refers to local governments’ more traditional legalistic role as
duty-bearers; the Coordination of Human Rights, in line with the notion of governance rather than
government, focusses on local governments’ role as leaders, facilitators, and collaborators, where
rights realisation is a shared duty of the community. Sometimes, local governments initiate or
facilitate the creation of ‘horizontal governance structures’
124
by bringing a large variety of local
stakeholders together in a series of meetings, such as was the case of the Danish city of Odense, for
the purposes of developing strategies and partnerships towards the realisation of refugees’ funda-
mental rights and their integration into the city.
125
Whether decentralisation is a result of official
legislative and administrative steps or a simple practical reality, such Coordination of human rights
can be an efficient way of addressing multiple issues holistically. In Turkey, while local govern-
ments are not officially assigned responsibilities on the realisation of human rights of refugees
126
situated in their territories, municipalities nevertheless find themselves in situations in which large
numbers of refugees are in need of urgent protection of their rights, with the national government
122. ibid.
123. Hoffman (n 58) 376.
124. Romana Careja, ‘Making Good Citizens: Local Authorities’ Integration Measures Navigate National Policies and
Local Realities’ (2018) Journal of Ethnic and Migration Studies (Special Issue: Migration Governance in an Era or
Large Movements).
125. ibid.
126. Turkey has ratified the Geneva Convention on the Status of Refugees only with a reservation upholding a geo-
graphical limitation, which means that the country does not legally offer asylum to persons coming from outside
Europe. The Syrian displaced people in Turkey have been under a temporary protection regime for the last 8 years.
46 Netherlands Quarterly of Human Rights 38(1)
unable to provide all necessary services. Consequently, local governments team up with interna-
tional, national and local actors, to create projects of service provision for refugees.
127
For
instance, the International Organisation for Migration has partnered with Kecioren, Adana Met-
ropolitan and Sanliurfa Metropolitan Municipalities, in order to fund and staff ‘one-stop shops’ for
refugees and migrants in town, within the premises of the municipality.
128
Here, staff hired by IOM
register, assist and guide applicants to specialised municipal bureaus, possible employers, schools,
specialised organs of the central administration represented in the town.
129
The ultimate objective
of the project is for the municipality to take over the one-stop shop at the end of the project, and
continue its services. This way, guidance for refugees and migrants, a function previously unfa-
miliar to the municipality, is introduced to the bureaucracy, and in the meantime essential services
are provided. Ankara Metropolitan Munici pality on the other hand leads a project funded by
UNHCR, in which the municipality, after consulting local businesses on the current needs and
priorities of the job market, has built a large facility aimed to provide Turkish language education
followed by vocational training with certification to around 500 refugees and locals at all times.
130
The facilities include classrooms, day care for the children of the attendees, psychological support,
conference rooms (that are open for public use of the locals), and modern machines to be used in
technical vocational training.
In some instances, municipalities are less active in direct provision of services to refugees and
thus realisation of human rights, but they cooperate with local NGOs who have organically
developed to fill that void in earlier stages. In Sisli (a district municipality of Istanbul), two primary
NGOs provide services to refugees and migrants while the municipality provides free basic
healthcare, a welcoming environment and general oversight.
131
In another prominent example,
Sultanbeyli Municipality in Istanbul – in order to avoid problems with regards to the legal com-
petences of the municipality for providing services to refugees, and to work around the general
trend for foreign funding in Turkey to be given to NGOs instead of administrative entities – has
created an ‘Association for Refugees’ based in two large facilities run by international as well as
local funding; providing healthcare, language education, psychological care, legal support, voca-
tional training and childcare.
132
The centre functions under an administration consisting of munic-
ipal officials and persons hired independently, and runs with the concerted efforts of international
organisations, the national government, charities, chambers and other stakeholders.
133
5.5. DISSEMINATION OF HUMAN RIGHTS
The Dissemination of Human Rights points at how local governments are key actors in spreading
the norms, values, practices, the essence of human rights and rights-based thinking. This happens
127. See also Colleen Thouez, ‘Strengthening Migration Governance: the UN as ‘‘Wingman’’’ (2018) Journal of Ethnic
and Migration Studies, DOI: 10.1080/1369183X.2018.1441604; UN, ‘Report of the Special Representative to the
Secretary-General on Migration’, 3 February 2017, UN.Doc.A/71/728.
128. Interviews with staff of the Kecioren Migrant Service Centre and the IOM Coordinator of the projects were conducted
in February 2019 in Ankara.
129. ibid.
130. A focus group with the staff of the centre in Ankara in January 2019.
131. Interview conducted with the Sisli Migration Office Staff in January 2019.
132. Multiple interviews and field visits conducted with Sultanbeyli Municipality and staff of the Association for Refugees
in December 2018.
133. ibid.
Durmus¸47
both within their territory and also in interactions with other actors of the international community,
especially other local governments, which will be discussed in turn.
When engaging with actors outside their territory such as other local governments and city
networks, local governments use the ir unique hands-on experience to provide persuasive and
practical guidance on how to best create fair, sustainable, inclusive communities. Much of the
engagement within city networks consists of the exchange of best practices, peer-to-peer learning,
and networking, during which agendas and priorities compete. Here, local governments previously
unaware of their role in human rights realisation – for instance those working with concepts such as
good governance or sustainable development – become exposed to and sometimes won over by the
concept of human rights in the city. Elements of human rights in the city, as well as conceptions of
the role of cities in international law thus travel within and among spaces of interaction for local
actors, and gain ground depending on the persuasiveness and persistence of the advocacy. Barce-
lona and its presence in city networking is a perfect example for this engagement. With more than
30 years of experience in implementing a human rights policy, Barcelona is an honoured guest at
any meeting of transnational city networks, and often an in itiator, organiser and/or a host.
134
Municipal officials of Barcelona share their experience, strategies, and conviction that human
rights are a hard obligation for local governments and not just a matter of taste.
135
Expressing
this firm belief and backing it up with successful practices, Barcelona becomes a role model for
upholding human rights in the city for other local governments with less resources and experi-
ence.
136
Gwangju’s role, as the first human rights city in South Korea, is similar within the Korean
and Southeast Asian context. Hosting the World Human Rights Cities Forum for eight consecutive
years and lobbying with the national government as well as other local governments, Gwangju has
contributed significantly to Seoul and other Korean cities becoming human rights cities, and the
government of South Korea sponsoring the role of local governments to be included into the
agenda of the UN Human Rights Council.
137
There are countless examples of this Dissemination of Human Rights, in its essence, values,
usefulness for the local administrations and its feasibility in practice, which can be observed in any
international meeting in which local governments advocating human rights are present. Dissemi-
nation gains its power from being an identity and interest building process.
138
Through interactions
with other actors, local governments may adopt human rights as part of their values forming their
identity, and start seeing human rights realisation as being in their interest. As such, Dissemination
directly contributes to the Contestation of Human Rights by local governments.
Dissemination within the territory of the local government refers to localising and increasing
ownership of human rights within the local administration and among the citizens of the locality.
Providing specialised training or conducting focus groups with different departments of the admin-
istration, as is the case in cities such as Barcelona, Vienna, Maltepe and Cankaya can, for instance,
134. Participant observation conducted in the World Human Rights Cities Forum in Gwangju, October 2018, the Fun-
damental Rights Forum organised by the EU FRA in Vienna, September 2018 as well as the ‘Cities for Rights’
Conference organized in Barcelona in December 2018.
135. ibid.
136. ibid, where representatives of local governments from Nepal, Indonesia and India expressed admiration for Barcelona
and an intention to follow through with Barcelona’s example.
137. Interview conducted with the International Relations Advisor to the City of Gwangju as well as observations in the
World Human Rights Cities Forum, both in October 2018.
138. Koh, ‘Transnational Legal Process’, supra note 25, 199-205.
48 Netherlands Quarterly of Human Rights 38(1)
increase awareness and ownership among personnel on the human rights implications of the
policies they implement.
139
Steps like these are often essential if a local administration aims to
achieve sustainability of a human rights policy and the rights-based approach in the
administration.
140
Local governments can however contribute to the creation of a culture of human rights within
their locality, amongst citizens. Some cities such as Vienna and Graz provide human rights
education for their citizens, sometimes for those as young as nursery aged children.
141
Local
acceptance and ownership of human rights become especially important when human rights
require local governments to take unpopular decisions such as allowing and protecting a gay pride
parade in Gwangju,
142
or accepting and providing essential services to refugees from Syria in
Gaziantep (Turkey). Expressing ideals akin to human rights in a culturally-sensitive language, the
Mayor of Gaziantep Fatma Sahin, stated in an interview that ‘as [a matter of] humanity, as [a
matter of] the rights of neighbours, we cannot be expected to be indifferent to it, to ignore it when
there is a fire with our neighbours, when there is a tragedy of humanity’.
143
Using the concepts of
humanity and the Islamic and ancient Turkish value of ‘rights of neighbours’ the Mayor reaches
out to her constituency in concepts that are familiar and sacred to them, contributing to a localised
understanding of human rights.
5.6. CONTESTATION OF HUMAN RIGHTS
The final type of local engagement with human rights constitutes Contestation of Human Rights.
Local governments, individually and in cooperation with other actors, contest elements of estab-
lished international law and positive human rights law as they stand. Contestation focuses most of
all on (1) the State-centricity of international law-making concerning human rights, (2) the specific
content of the positive human rights norms, (3) the State-centricity in the prerogative to enter into
human rights obligations, and (4) the State-centric notion of citizenship which conditions the
protection of individuals’ rights on being documented, registered and lawfully present in a State’s
territory. This contestation may be explicit and outspoken, in opposition to a dominant actor’s
more regressive policy, in which case it might also constitute Defence of Human Rights, though not
all Defence will bring into question the established system of international human rights law.
Pronouncements on how the local government has a right to regulate a human rights issue, at
times surpassing domestic competences of the local government, can constitute ‘jurisdictional
assertions’ as Cover terms, competing for authority with other claims of jurisdiction, challenging
139. Interviews conducted with Sisli, Cankaya and Maltepe Municipalities in November 2018-January 2019 and speeches
of Barcelona representatives in the World Human Rights Cities Forum, October 2018. Presentation by Vienna Human
Rights Director in Istanbul during the International Human Rights Cities Conference, 23-24 November 2018. Pre-
sentations during Human Rights Cities Workshop, Graz, March 2018.
140. Interviews with officials of the Sao Paolo (Brazil), and Barcelona, both done in October 2018 in Gwangju, in which
they that work on human rights of refugees and undocumented migrants in the city and the continued existence of the
Human Rights Departments in the cities were ensured by institutional changes done previously following a legislation
on human rights.
141. Vienna (n 139).
142. Which took place despite massive conservative protests and direct pleas to the municipality to ban the parade, in
October 2018.
143. Fatma Sahin, ‘Gaziantep Gonlunu ve Kapilarini Suriyelilere Acti’,(2016) 813 Iller ve Belediyeler 3, 5 (author
translation).
Durmus¸49
dominant (State) assertions on human rights.
144
Local and regional governments in Spain imple-
menting universal health care policies covering undocumented migrants despite national govern-
ment and Constitutional Court efforts to illegalise such efforts arguing on inequality and an
unconstitutional stretch of local competences, have for instance succeeded in gaining a pronounce-
ment by the CESCR that Spain may not impede with local governments realising human rights to a
higher extent than the national average.
145
When authors of a Contestation wish to persuade the international community and achieve a
change in (a part of) the dominant understanding of human rights, they may interact with other
actors and disseminate their understanding. But Contestation can also be a quiet one, such as a
quiet resistance in refusing to follow national government policies violating human rights, within
the territory of the locality, such as the practice of Sanctuary Cities in the US refusing to cooperate
with national policies requiring them to provide information on undocumented migrants that could
lead to their deportation, which constitutes a contes tation based on the premises that persons
without documentation deserve protection and that local authorities have a say in determining and
providing such protection at times against the central government position.
146
Other examples of contestation of (1) the State-centricity of human rights law-making are for
instance the drafting, signing and ratification by local governments of the European Charter for
Safeguarding Human Rights in the City, the Global Charter-Agenda for Human Rights in the City,
the Cities for Adequate Housing: A Municipalist Declaration on the Right to Housing and the Right
to the City, the Marrakech Mayors Declaration: Cities Working Together for Migrants and Ref-
ugees and numerous other normative documents created and adopted by city networks and local
governments.
147
Formulated in a manner demonstrating deliberate and advanced legal drafting
techniques, and imitating a form of inter-State law-making, the creation of these documents
arguably reflect local governments’ frustration with their lack of access to the scene of interna-
tional law-making. Second, (2) local governments, in creating these documents, generate new
human rights norms and alternative contestations of existing ones. For instance, the European
Charter mentioned above enshrines a ‘General Right to the Public Services of Social Protection’,
the ‘Right to the Environment’, the ‘Right to Harmonious and Sustainable City Development’, the
144. Robert M Cover, ‘The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation’ (1981) 22 William and
Mary Law Review 639.
145. UN Economic and Social Council, Concluding observations on the sixth periodic report of Spain, 25 April 2018,
E/C.12/ESP/CO/6, para 11: ‘Notwithstanding the fact that decentralization and autonomy can encourage imple-
mentation of the Covenant, the Committee remains concerned at the persistence of certain unjustifiable disparities
between the different autonomous communities, which impede the full enjoyment of some Covenant rights by persons
in some of those communities. The Committee is also concerned that certain Constitutional Court decisions prevent
the autonomous communities from granting, by means of their own resources, fuller protection for Covenant rights
than that provided at the national level. Uniform, national solutions are welcome when they promote the progressive
realization of economic, social and cultural rights, but are of concern to the Committee when they hinder such
progressive realization (Articles 2 (1) and 28)’. See also: ‘Joint Submission to the Committee on Economic, Social
and Cultural Rights on the occasion of the review of Spain´ s 6th Periodic Report at the 63 rd Session’, March 2018,
Executive Summary, 15 February 2018,
review-march-2018>.
146. Oomen et al. (n 116).
147. For a more detailed analysis of norm-generation by local governments, see Elif Durmus¸ and Barbara Oomen,
‘Transnational City Networks and Their Contributions to Norm-Generation in International Law’ submitted to Local
Government Studies as part of Special Issue on Transnational City Networks and Migration Governance. See Cities
for Adequate Housing (n 35); European Charter (n 49); Global Charter-Agenda (n 76); Marrakech Declaration, (n 79).
50 Netherlands Quarterly of Human Rights 38(1)
Right to Movement and Tranquility in the City’ and the ‘Right to Leisure’ all of which are new to
positive international human rights law.
148
Third (3) local governments also commit, in even the
most official means available to them, to international norms that their respective States have not
chosen to be bound by, contesting that entering into international obligations are a State-exclusive
prerogative. Local governments in the United States symbolically ratifying the CEDAW conven-
tion when the US has not ratified it, and adopting the Convention into their local legislation, is one
such example.
149
On a last note (4) local governments also contest the State-centric notions of citizenship linking
rights to lawful presence within State borders and nationality. The Global Charter-Agenda states
[a]ll Charter-Agenda provisions apply to all city inhabitants, individually and collectively, without
discrimination. For purposes of this Charter-Agenda, all inhabitants are citizens without any distinc-
tion. [...] A city inhabitant is any person that lives within its territory even if without fixed
domicile.
150
Contestation of citizenship through the advoc acy of a city-citizenship (or ‘cityzenship’
151
)
based on residence or even presence in the locality is also reflecting in the actions of New York,
Barcelona, Zurich and other cities providing city identity cards to undocumented migrants present
in their territory, so that they may benefit from municipal services. Additionally, registering
vulnerable undocumented migrants for the purpose of local service provision, when they are not
registered elsewhere in a national system or when their status normally excludes them from
benefitting from those services, are also steps that local governments take in contestation of a
State-centric (nationality-based) and legalistic understanding of citizenship and belonging.
152
6. HOW LOCAL GOVERNMENT ENGAGEMENT PLURALISES
INTERNATIONAL LAW AND HUMAN RIGHTS
How do we understand such vast and complex engagement of local governments with human
rights? First, it is fit to make an empirical observation. The introduced types of local government
engagement with human rights relate to the system of international law in and challenge it in
different ways. While some forms of engagement could be considered to communicate with the
system of international law within its own terms, they nevertheless seek to pluralise that system,
and upgrade the status of local governments in it to establish them as internationally relevant
148. European Charter (n 49) Articles XII, XVIII, XIX, XX and XXI.
149. Davis (n 107) and Haddad (n 107).
150. Global Charter-Agenda (n 76), General Provisions, B. Scope of Application, 9.
151. Barbara Oomen, ‘Cities of Refuge: Rights, Culture and the Creation of Cosmopolitan Cityzenship’, in Rosemarie
Buikema, Antoine Buyse, Ton Robben (eds.), Culture, Citizenship and Human Rights (Routledge, 2019).
152. Kecioren Migrant Service Centre, Sultanbeyli Association for Refugees (administered by local officials) and Bagcilar
Municipality register persons under temporary protection in their local registries, in order to better plan for, prioritise,
provide services and realise the rights of persons otherwise invisible from the data available to local governments.
Additionally, Southern Italian cities register refugees when explicitly prohibited by national government to avoid
Dublin obligations. There is a vast amount of social science literature on the contestations of citizenship that is
impossible to include in this paper. See Maurizio Ambrosini, Manlio Cinalli and David Jacobson (eds.), Migration,
Borders and Citizenship (Palgrave Macmillan 2019); Willem Maas (ed.) Multilevel Citizenship (UPP 2013); Rose
Cuison Villazor, ‘Sanctuary Cities and Local Citizenship’ (2010) 37 Fordham Urban Law Journal 573.
Durmus¸51
actors
153
with the possible future implication of international legal personality. Some kinds of
engagement on the other hand challenge the very fundaments of international law, such as its State-
centricity, rules concerning inclusion, exclusion and participation of actors other than the nation-
State, and its systemic rules on sources and law-making. Most engagement with human rights falls
somewhere in a spectrum between the two poles of accepting a State-centric international legal
system and contesting its very fundaments.
To offer a few examples of local governments’ engagement within the rules of the traditional
international legal system; local governments engage in the Implementation of Human Rights as
State organs, implementing States’ human rights obligations within their local jurisdiction, and in
the Formation of Human Rights, by contributing to the accumulation of State practice and opinio
juris as internal elements of the State. They may however also foreground their autonomy and non-
State character by seeking a separate seat at the table when international agreements are negotiated
in State-centric law-making processes as part of Formation. They may also pursue Implementation
of norms that their States have not expressed consent to be bound by, that were however estab-
lished in traditional State-centric ways. These latter two attempts will often go unnoticed by the
conservative international lawyer.
There are many types of engagement that substantially challenge the fundaments and function-
ing of international law, creating alternative or complementary understandings of what human
rights and international law are, and how they should be realised. For instance, in the Contestation
of Human Rights local governments challenge the State-centricity of law-making and the capacity
to enter into obligations, the State-centric understanding of citizenship, as well as the overreliance
on the legal status of individuals for the protection and realisation of their human rights. Accord-
ingly, some local governments and networks of local governments have produced serious amounts
of norms
154
in order to protect and realise human rights in their localities to a better extent than
national governments. Though State-dominated processes such as the work of UNHRC have
addressed this engagement in passing, there is yet no thorough unpacki ng of what the quasi-
legal norm-creation and commitments by local gover nments means for legal theory.
155
Local
governments engaging with human rights will often not choose between the two strategies but
instead resort to both seeking involvement in traditional international legal processes and also to
creating their parallel body of practice on ‘human rights in the city’ – focussing more on the latter
when there is higher frustration and impatience regarding the expectation towards the State-centric
system to recognise and include them.
Second, how the international lawyer interprets local government engagement will depend on
the observer’s subjectivity. If the observing international lawyer has a more traditional or conser-
vative understanding of the international legal system, some few forms of engagement may catch
this observer’s attention, who might at most consider such questions as legal personality or human
rights accountability for local governments. Most local government engagement will however be
pushed outside the strict borders of international law under this observer’s perception, and will
develop in parallel to international law, perhaps even into a separate normative order that could be
titled ‘human rights in the city’. As discussed in Section 2, legal pluralism has different concep-
tualisations in different disciplines. While the common definition with its sociological roots refers
153. Term used by Aust in ‘Das Recht der Globalen Stadt’ (n 93).
154. See Sections 4 and 5.6 above for a fraction of these norms.
155. HRC (n 64) also see Durmus¸ and Oomen (n 147) for a forthcoming analysis.
52 Netherlands Quarterly of Human Rights 38(1)
to the parallel existence of more than one normative order in a given space and time, scholars of
international law and relations, such as the New Haven Scholars have also used the term to
describe a single normative order – the international legal order for instance – that was nevertheless
pluralist in its nature. Excluding local government engagement from the scope of international law
would thus reflect the classical, sociological definition of legal pluralist describing multiple par-
allel normative orders. An international lawyer understanding the ‘international legal system’ as
more inclusive and pluralist however, may prefer the New Haven School approach, recognising
that local governments (together with city networks, local NGOs and other actors working on the
relationship between local governments and international law) have become a norm-generating
community. This article supports this second approach, as then the complete array of local gov-
ernment engagement with international law can be taken into account as opposed to being dis-
missed as too radical or ‘non-law’. Even seemingly radical contestations of human rights carry
important and valid criticism for international law. Additionally, even if the observer considers
current local human rights engagement to fall outside the scope of positive international law, there
are already instances in which local government activities have seeped into more mainstream
international legal processes and the work of central international organisations.
156
7. CONCLUSION
While mapping city engagement with human rights is challenging, it is nevertheless not as chal-
lenging as attempting to provide a summary representing of all possible implications of and
perspectives of analysis for this engagement. Many important questions remain unasked or unan-
swered. Empirical inquiries into how much human rights influence local government behaviour, or
into the extent to which local governments’ engagement with human rights improves effectiveness
of rights realisation on the ground are both highly topical. One could also scrutinise the imbalance
of legal, financial and political power among different local governments and their capacity to
engage with and influence the development of the growing body of norms which can be called
‘human rights in the city’, discuss whether (state) consent in international law is decaying
157
and
local governments’ contribution to it, or the significant role of academia and civil socie ty in
influencing the choices of action and eventual commitments of local governments.
The clearest lesson to be taken away by scholars of human rights and international law follow-
ing this article is the following: local governments have become actors relevant and important for
the protection and promotion of human rights. When they engage with human rights, they pose a
critique to traditional international law and human rights, whether this is done by seeking to engage
with this normative system by participating within its own terms, or by challenging the norms of
belonging and norm-generation in the first place. Whether we take a stricter legal positivist
perspective when looking at this engagement, or a broader socio-legal lens, local engagement
with human rights has implications for both the content of human rights – in the creation of a body
of norms that could be called ‘human rights in the city’ – and also for participation in international
156. HRC (n 64); CESCR (n 145); Participant Observation in the World Human Rights Cities Forum, October 2018,
Gwangju, in which an official from the Secretariat of the Advisory Committee of UNHRC stated that ‘a lot of the
input was drawn’ from the former outcome documents of the World Human Rights Cities Forum, for the 2015 report
that the Committee drafted on the role of local governments in the promotion and protection of human rights.
157. Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2014) 108 American
Journal of International Law 1.
Durmus¸53
law. Even if the growing body of norms and practices making up ‘human rights in the city’ is not
considered international law, there have already been instances of their influencing traditional
international legal processes and thus positive international law, such as the content of Human
Rights Council resolutions, the right to housing codifications and CESCR Country Reports.
158
Local governments engaging wi th human rights are best understood as a norm-generat ing
community as Berman of the ‘New’ New Haven School describes, creating norms and jurisdic-
tions, with or without official authority to do so, to contest both their position in the system of
international law and also the content and creation of the norms at stake. The complex pluralism in
normative engagement ‘poses a particular challenge for law because law often seeks certainty and
tends to assume fixed boundaries between those who are within and those who are without.’
159
However, norms in the international legal system have always been challenges and propositions at
some point in time, put forward by persons or entities falling within or outside the body of the
‘State’. As such, discarding the norms, practices and principles that constitute ‘human rights in the
city’ will keep hidden from eyes the factors, processes and actors behind the development of
international law, as well as the contestations that fail to become the dominant position in the
law. It will be highly interesting to continue observing what influence this normative engagement
by local authorities will have on the general development of human rights and international law.
Author’s note
Elif Durmus¸, PhD Researcher at VICI Pro ject ‘Cities of Refuge’ (funded by the Netherlands Scientific
Organisation – ‘NWO’), Utrecht University and Lecturer at University College Roosevelt. www.citiesofre
fuge.eu - @UUCoR - @elifdurms; Contact: e.durmus@uu.nl.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publi-
cation of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication
of this article: Research for this article has been conducted as part of the project ‘Cities of Refuge’ funded by
the VICI grant of the Netherlands Scientific Organisation (‘NWO’). See: www.citiesofrefuge.eu
158. See (n 156).
159. Berman, Global Legal Pluralism (n 36) 323.
54 Netherlands Quarterly of Human Rights 38(1)
To continue reading
Request your trial