BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

The City and the World

YISHAI BLANK*

What role do cities play in the emerging global legal order? Over the past two decades cities have become objects of international and transnational regulation, and they have also begun enforcing international legal norms and standards. This transformation is part of an emerging global order that reconfigures cities and utilizes them in order to advance various, often conflicting ideological and political commitments. While there is a burgeoning body of literature on the globalization of cities, that literature has ignored the legal dimension of this phenomenon. This Article fills that gap and shows how “local” law impacts on “global” change. And while there is a growing body of literature dealing with the rise of non-state actors in international law and politics, that literature has overlooked the emergence of cities as independent agents. Drawing on examples from across the globe, the Article demonstrates that cities are gaining independent status and are functioning as vessels through which world norms reach individuals and communities. An important implication of the analysis is that we should recognize cities’ singular role as normative mediators between the world and the state. This function of cities is crucial because of their special characteristics as democratically organized communities in which place is not only

∗ Buchmann Faculty of Law, Tel-Aviv University; LL.B., B.A. (Phil.), Tel-Aviv University, 1997; LL.M., Harvard Law School, 1999; S.J.D., Harvard Law School, 2002. I thank Eyal Benvenisti, Nili Cohen, Hanoch Dagan, Aeyal Gross, Sharon Hannes, Karen Knopp, Roy Kreitner, Shai Lavi, John O. McGinnis, Menny Mautner, Guy Mundlak, Ariel Porat, and Dori Spivak for helpful comments and suggestions. I owe a special debt to David Barron and Jerry Frug who have helped me to rethink and reformulate my ideas in a profound way. Ruthy Weysenbeek and Nimrod Karin provided helpful research assistance. I also thank the participants of the Tel-Aviv Faculty of Law faculty seminar, the American Bar Foundation seminar, and the Tel-Aviv-Northwestern Law School Faculty Exchange Workshop for helpful comments and suggestions. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

876 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875

imagined, but lived.

I. INTRODUCTION ...... 877 II. LOCAL GOVERNMENTS AND GLOBALIZATION ...... 881 A. Globalization...... 882 B. Cities and Globalization...... 886 C. A New Legal Order: Trinity Instead of Two Pairs ...... 888 III. LOCALITIES’ LEGAL STATUS IN INTERNATIONAL LAW ...... 890 A. The Locality as an International Legal Concept...... 890 B. Local Governments’ Lack of Legal Personality in International Law...... 892 C. Local Governments: Between Democracy and Bureaucracy ...... 894 IV. THE EMERGENCE OF INTERNATIONAL/TRANSNATIONAL NORMS AND INSTITUTIONS THAT TRANSFORM LOCALITIES’ LEGAL STATUS ...... 898 A. Localities’ Assumption of International/Transnational Duties and Authorities ...... 899 1. International Charters and Covenants and Customary International Law...... 900 2. Regional and Other Non-UN International and Transnational Treaties ...... 904 B. Localities Becoming Objects of Global, International, and Transnational Regulation ...... 906 1. United Nations Reconfiguration of Localities: Decentralization and Democracy ...... 907 2. The World Bank’s Regulation of Localities: Transforming Decentralization...... 915 3. Regional Experiences: Europe and NAFTA ...... 919 C. Localities Becoming Enforcers of International Norms and Standards ...... 922 1. Adoption of International Norms by Localities...... 922 2. Where States Fail, Local Governments Might Succeed...... 926 3. The Globalization of International Law ...... 927 D. Local Governments Becoming Political Actors on the World Political Stage...... 930 V. RECONSTRUCTING THE NEW TRINITY...... 932 VI. CONCLUSION ...... 938

BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 877

I. INTRODUCTION

Around the globe, localities1 are beginning to confront the world as norm rather than as mere fact. The world, a multilayered web of intricate economic, technological, cultural, and societal facts, is increasingly becoming a set of norms and an amalgamation of norm-generating institutions attempting to acquire jurisdiction over localities, turning them into legal entities in the global sphere. The evolution of international, transnational, and global institutions and norms that are by choice or accidentally growing to govern and manage localities worldwide has the potential to transform both the post-WWII international legal order and existing legal orderings of the relationships between localities and states across the globe. In international law and within various international organizations (IOs), localities gradually acquire status and standing. And in many jurisdictions around the world, transnational entities, IOs, and international norms slowly begin to impact and reshape local government law, meaning the rules that govern the powers and duties of localities within a state. Hence, this Article aims to illuminate the legal transformation that has the potential to reconfigure the relationships between localities, states, and IOs. This transformation is best understood as an important, yet almost hidden part of the legal developments that accompany the onward march of globalization. A vast body of social science literature such as geography, sociology, and urban planning has emerged in the past decades, describing various aspects of the interaction between localities and the world, an interaction taking place in “world” or “global” cities, where global capital, goods, governance, business, and workforce are all concentrated.2 But while such cities have been researched and

1. Throughout the Article, I use the terms “locality and “local government” interchangeably, and I use both as strictly legal concepts. While in other fields of knowledge such as sociology, philosophy, economics, and urban planning the term “locality” or “city” often refer to a spatial, economic, or social phenomenon that not always corresponds to the legal entity of the legally incorporated locality, in this Article the emphasis is on the legal entity. Indeed, as Frug and Barron argue, one of the confusions in the non-legal literature dealing with cities is that often they view a whole metropolitan area as one city, ignoring the legal context in which various localities within the same area operate. See Gerald E. Frug & David J. Barron, International Local Government Law, URBAN LAW. (forthcoming 2006). 2. The term “global cities” was coined and developed by the famous urban sociologist Saskia Sassen in her groundbreaking book. SASKIA SASSEN, THE GLOBAL CITY: NEW YORK, LONDON, TOKYO (1991). “World cities” is a term often used to describe a similar phenomena. See, e.g., PETER HALL, THE WORLD CITIES (1984); WORLD CITIES IN A WORLD- SYSTEM (Paul L. Knox & Peter J. Taylor eds., 1995); WORLD CITIES BEYOND THE WEST: GLOBALIZATION, DEVELOPMENT AND INEQUALITY (Joseph Gugler ed., 2004). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

878 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 described as economic, technological, and social phenomena, they have not yet been analyzed as legal entities, constructed by law and by legal institutions, and responding to legal changes. Furthermore, less “global” localities, such as medium sized cities, as well as other types of localities such as towns, villages, and suburbs are left out of most theorizations as if they did not experience any globalization- related changes, and as if they somehow remain in a completely national legal order. And though much has been written on the extension of international law over non-state actors such as individuals,3 minority groups,4 multinational corporations,5 national liberation movements,6 and other civil society elements,7 localities have been overlooked. Hence, the role of international law in regulating one of the most important aspects of globalization—the changes that localities undergo as part of it and their role in bringing it about—was almost entirely ignored.8 But recent legal activities tell a different story, which this Article documents, of a profound shift in the way localities function legally in the international and national spheres. The most significant activities include, first, the establishment of United Nations (UN) agencies that are centered around issues of local self-government and decentralization of powers including the formulation of a draft World Charter. Second, localities internalize international norms into their local legal systems and enforce such norms. Third, numerous associations that represent local governments in global governance projects begin to appear. And, lastly, administrative and judicial bodies that regulate the relations between localities and states become more prominent. Through these developments, localities are increasingly becoming prominent actors in the new global configuration. As legal entities, localities exist in two distinct legal spheres: the national and international. Hence, the analytical gap concerning the locality as a global legal concept exists in two separate legal

3. The rise of the individual as the bearer of rights and duties in international law marks post-World War II, and has been observed by many writers. With the establishment of the International Criminal Court (ICC), this process has taken a giant leap forward, since private persons became now subjects of international criminal law. 4. See generally ANNA MEIJKNECHT, TOWARDS INTERNATIONAL PERSONALITY: THE POSITION OF MINORITIES AND INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2002). 5. MALCOLM N. SHAW, INTERNATIONAL LAW 223–25 (5th ed. 2003). 6. Id. at 220–23. 7. Id. at 223–25. 8. An article recently published by Frug and Barron is a rare example of such legal analysis. See generally Frug & Barron, supra note 1. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 879 fields: in the field of international law and in the many fields of national law. It is the goal of this Article to describe in some detail the emergence of local governments in legal doctrine and thought, in both fields. By looking at various sources of international and transnational law, and at the activities of international and transnational institutions such as the UN, the North American Free Trade Agreement (NAFTA), and the European Union (EU), I demonstrate the extent to which localities have acquired varying degrees of legal status in international law as actors independent of the states in which they are located. I analyze the competing philosophies regarding the role of localities and the way these conceptions affect the legal attitudes toward them. I also describe specific case studies in which localities become more involved in the process of international norm creation, as evidence of the high stakes they have in the process of internationalization/globalization.9 Not surprisingly, this process involves a deep reconfiguration of the way localities are viewed. They are re-cast as schoolhouses for democracy (as in the old Tocquevillean idea) and not mere subdivisions of states; but at the same time they are viewed less as public entities, and more as elements of civil society like non- governmental organizations (NGOs) and private corporations and associations that have emerged as actors in the international plane. In other words, a conception of local governments as private corporations whose main goal is to be financially viable and self- supporting, provide good services to their consumer-residents, and “foster” democracy (rather than manifest it) is emerging, replacing the more public-oriented one.10 In addition, I offer preliminary lines of research towards a better understanding of the various possible dynamics that take place in national legal systems regarding localities and their interaction with the world. I look at the way local governments and local interest groups begin to use international law norms—such as recognized human rights—in order to advance local agenda and express local values, sometimes colliding with central governments’ interests and policies. I also analyze ways in which localities are

9. Some writers make a clear distinction between the process of globalization and that of internationalization. While internationalization is depicted as a well orchestrated program lead by international actors such as the U.N., aimed at creating a unitary international (and universal) political and legal system, globalization is described as its wild counterpart—an erratic amalgamation of economic and cultural processes in which “market” forces and other unorganized groups impose their different agendas over “receiving” parties. See, e.g., Aeyal M. Gross, Globalization, Human Rights, and American Public Law Scholarship—A Comment on Robert Post, 2 THEORETICAL INQ. IN LAW 337, 347–48 (2001). 10. See generally Frug & Barron, supra note 1 (emphasizing this point). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

880 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 being “exposed” to global norms and global institutions due to activities of various local and national actors.11 As I show throughout this Article, the rise of localities in contemporary international law has been accompanied by an alignment of three main competing sets of reasoning and justifications. Indeed, these ideologies accompany the legal practice which I identify and their unique coalition facilitated the emergence of a unique consensus over the desirability of decentralization and local empowerment. The first emphasizes the economic efficiency and development that supposedly comes with decentralization and local power. The second views localities as instruments for achieving community empowerment and pluralism. And the third sees local governments as important vehicles for spreading democracy throughout the world. While these sets of justifications sometimes run counter to each other, as a result of their shared suspicion of and dissatisfaction from powerful national governments, they are aligned in supporting devolutionary schemes. Thus, all three modes of justification support the empowerment of local governments vis-à-vis central ones. However, since every decentralization requires some form of central authority that will decide on the division of powers between different levels of government and monitor and supervise the coordination between and functioning of the lower levels, the emerging order also involves empowering various international entities that function as central authorities in the international sphere. Since many of the changes I describe are still fledgling, it is yet less clear how these competing ideologies will come to terms with ensuing changes that come with decentralization including growing international supervision, and an increased competition and inequality among localities not only from different states but also within the same state. This Article tentatively examines the merits of the various justifications given to the process of global decentralization as well as the possible consequences of such a process, and offers a theoretical analysis of the direction such a radical transformation should take, as well as a consideration of the idea that localities be given an international legal status similar, if not identical, to that of nation-states. Farfetched as this idea might sound, I argue that it is necessary to consider it as a thought-experiments since it clarifies the

11. In this sense, this Article joins not only critical thought on international law but also new legal process approaches to international law. See, e.g., Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181 (1996); Anupam Chander, Globalization and Distrust, 114 YALE L.J. 1193 (2005). As I explain below, my use of legal process approaches is mainly for descriptive purposes and not for justificatory reasons. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 881 theoretical underpinnings of the developments that this Article documents. I argue that local governments in the global age cannot easily be categorized as being either empowered or weakened by these multifaceted processes, nor can they be conceptualized as either gaining sovereignty or losing it. The double-edged sword of acquiring the status of legal person—of having rights and being burdened by duties—and of being empowered, yet supervised and regulated, demonstrates itself in all its force with respect to localities in the global arena. Local governments are gaining standing in international institutions, yet being closely watched by them. Localities are becoming the authentic representatives of the people, yet are required to “democratize” themselves in order to be able to represent the true will of the people. Also, while states are required to grant local governments more authority and powers, the latter are also required to reform themselves and submit to an emerging “global” jurisdiction. Under this emergent jurisdiction, whose exact characteristics are still forming, localities seem to acquire features of semi-private, almost-nonstate actors. The privatized conception of localities views them first and foremost as financially self-sufficient entities, whose main goal is to advance private economic development, and efficiently manage local services to their residents.

II. LOCAL GOVERNMENTS AND GLOBALIZATION

A large body of literature has accumulated in the past two decades, dealing with localities and the world. Most of it has purported to describe the impact of “globalization” on a particular type of locality—cities. The city, a specific kind of human settlement with a unique history and sociology, has gained such academic attention due to its unmatched role in bringing about and partaking in the process of globalization, in which it supposedly experiences various intrusions, penetrations, and influences by global, multinational, or international elements.12 Among the entities

12. Such processes take place not only in the developed world, but also in the third world. See generally H. V. SAVITCH & PAUL KANTOR, CITIES IN THE INTERNATIONAL MARKETPLACE: THE POLITICAL ECONOMY OF URBAN DEVELOPMENT IN NORTH AMERICA AND WESTERN EUROPE (2002) (describing ten cities in North America and western Europe); GLOBAL NETWORKS, LINKED CITIES (Saskia Sassen ed., 2002) (describing cities in developing countries like Sao Paulo and Beirut); GLOBALIZING CITIES: A NEW SPATIAL ORDER? (Peter Marcuse & Ronald van Kempen eds., 2000) (dealing with cities in developing countries such as Calcutta, Rio de Janeiro, and Singapore, and in developed countries like New York, Tokyo, Brussels, and Frankfurt); ILLEGAL CITIES: LAW AND BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

882 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 that are said to intrude upon cities are human beings, money, cultural images, and ideas.13 The notion that cities are vulnerable to external influences is not novel. A hundred years ago, the French architect Le Corbusier announced “the city of today can no longer put up military defense; its boundaries have become a confused and stifling zone comparable only to a camp of roving gypsies. . . . [T]oday the city’s gates are in its center. For its real gates are the railway stations.”14 Suggesting that cities can no longer—thanks to technological innovations and political transformations—be protected by the borders of the state, Le Corbusier could not have imagined how cities are becoming even more susceptible to global influences, and how much more states will be weakened vis-à-vis the world and vis-à-vis cities.

A. Globalization

Globalization has come to signify almost every major event that happens in the world: the rise of the Internet; the fall of Communism; the spread of McDonalds, Microsoft, Gap, and Starbucks throughout the world; the emergence of widespread terrorism; EU expansion; Yugoslavia’s violent collapse; the establishment of the International Criminal Court (ICC); the enrichment of the developed world; the impoverishment of the developing world; global warming; and the appearance of global anti-globalization social movements. Due to the myriad meanings of globalization, I shall briefly sketch the discourse relating to it and focus my exposition on its unique aspects with regard to cities. Globalization is often understood as the dissemination, transmission, and dispersal of goods, persons, images, and ideas across national boundaries. In this sense, some scholars argue that there is nothing new about globalization and that it is merely a different name for an old phenomenon;15 that nation-states were never islands detached from one another and that the modern era has been marked by the dual and contradictory processes of

URBAN CHANGE IN DEVELOPING COUNTRIES (Edesio Fernandes & Ann Varley eds., 1998) (cities in developing countries such as Istanbul, Caracas, and more). 13. See generally ARJUN APPADURAI, MODERNITY AT LARGE: CULTURAL DIMENSIONS OF GLOBALIZATION (1996). 14. LE CORBUSIER, THE CITY OF TO-MORROW AND ITS PLANNING 95, 116 (Frederick Etchells trans., 1987) (1929). Le Corbusier describes what he sees as the decadence of modern cities, caused by cities’ inability to defend themselves from exterior influence and invasions and thus organize and manage growth. 15. Be it called “worldliness,” “cosmopolitanism,” or “internationalism.” BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 883 nationalization and internationalization.16 Nevertheless, it seems that globalization marks a real transformation of, and perhaps departure from the current national order in which sovereignty, understood as the absolute control of the nation, through its political institutions, over the whole national territory and its populace played a major role. States across the globe are currently losing the monopoly that they have possessed during the past two hundred years over economic, social, and political activities within their territory. They are even losing their monopoly over the core of sovereignty—the ability to wage war and defend themselves. And these previously centrally- held authorities and functions are shifting to the hands of a growing number of entities: some public17 and some private; some local and some regional;18 some transnational and others international.19 Thus at the center of the many phenomena that share the title of globalization is the core of de-nationalization.20 Indeed, unitary and solidified sovereignty no longer characterizes states (or any other entity for that matter)—if it ever did21—and has now been decentralized: vested in the hands of a growing number of state, post-state and non-state actors.22 In the American context, a lively debate is taking place in light of the delegation of various treaty-making powers to non-federal actors, a phenomena recently termed the “new confederalism”: States—rather than the federal government—are increasingly creating various

16. See generally MARTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870–1960 (2002). 17. Such public entities include the World Health Organization (WHO), the Universal Postal Union (UPU), and more. See discussion in LASSA OPPENHEIM, INTERNATIONAL LAW 22 (H. Lauterpacht ed., 8th ed 1955); see also SHAW, supra note 5, at 223–25. 18. Such regional entities include the EU, NAFTA, and more. 19. The ICC is, obviously, the international entity that currently represents the clearest example of an international threat to states’ sovereignty. However, the establishment of the U.N.—and its predecessor the League of Nations—already marked a clear dilution of states’ sovereignty. 20. Numerous scholars have developed this idea. See generally JURGEN HABERMAS, THE POSTNATIONAL CONSTELLATION: POLITICAL ESSAYS (Max Pensky trans., 2001); SASKIA SASSEN, LOSING CONTROL? SOVEREIGNTY IN THE AGE OF GLOBALIZATION (1996); SASKIA SASSEN, DE-NATIONALIZATION: TERRITORY, AUTHORITY AND RIGHTS IN A GLOBAL DIGITAL AGE (2005). 21. Krasner argues that states were never sovereign in the sense that international political theory described them to be. See generally STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999). 22. See generally DAVID J. ELKINS, BEYOND SOVEREIGNTY: TERRITORY AND POLITICAL ECONOMY IN THE TWENTY-FIRST CENTURY (1995); BEYOND SOVEREIGNTY: COLLECTIVELY DEFENDING DEMOCRACY IN THE AMERICAS (Tom Farer ed., 1996); BEYOND SOVEREIGNTY: ISSUES FOR A GLOBAL AGENDA (Maryann Cusimano Love ed., 2d ed. 1998); PROBLEMATIC SOVEREIGNTY (Stephen D. Krasner ed., 2001). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

884 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 entities that become players in the international sphere.23 Yet almost none of the writers who address the changing nature of sovereignty and the new world order mention local governments as one of those non-state actors.24 This Article seeks to illuminate this oversight and to explain it, in part, by going back to the history of localities in international law, and by demonstrating the unique status of them in modern nation-states, reflected in various legal regimes throughout the world. However, though the classic sovereign nation-state is, as Anne-Marie Slaughter noted, “disaggregating into its separate, functionally distinct parts,”25 it has not at all disappeared, and it still exerts power and influence both domestically and internationally. Though states are no longer the sole actors in the world, and other actors such as IOs, multinational corporations, global networks, civil society groups, and localities now join them, states still function as the main subjects and bearers of international law. In addition, though globalization processes affect many actors within the state, the state still has considerable influence over these actors. Even as

23. In the American context this debate is usually framed around the “treaty power” and the constitutionality of delegating treaty making powers to non-federal actors. For a favorable assessment of these trends, see David Golove, The New Confederalism: Treaty Delegation of Legislative, Executive and Judicial Authority, 55 STAN. L. REV. 1697 (2003); Neil Kinkopf, Of Devolution, Privatization, and Globalization: Separation of Powers Limits on Congressional Authority to Assign Federal Power to Non-Federal Actors, 50 RUTGERS L. REV. 331 (1998); Chantal Thomas, Constitutional Change and International Government, 52 HASTINGS L.J. 1 (2000); Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 COLUM. L. REV. 403 (2003); Edward T. Swaine, The Constitutionality of International Delegations, 104 COLUM. L. REV. 1492 (2004). Other writers are much more critical towards this trend for various reasons grounded in the U.S. Constitution (mainly the non-delegation doctrine). See, e.g., Ernest A. Young, The Trouble with Global Constitutionalism, 38 TEX. INT’L L.J. 527 (2003); Julian G. Ku, The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 MINN. L. REV. 71 (2000). 24. See, e.g., Peggy Rodgers Kalas, International Environmental Dispute Resolution and the Need for Access by Non-State Entities, 12 COLO. J. INT’L ENVTL. L. & POL’Y 191 (2001); Richard A. Rinkema, Enviromental Agreements, Non-State Actors and the Kyoto Protocol: A “Third Way” for International Climate Action?, 24 U. PA. J. INT’L ECON. L. 729 (2003); Franklin G. Snyder, Sharing Sovereignty: Non-State Associations and the Limits of State Power¸ 54 AM. U. L. REV. 365 (2004); Duncan B. Hollis, Why State Consent Still Matters—Non-State Actors, Treaties, and the Changing Sources of International Law, 23 BERKELEY J. INT’L L. 137 (2005). 25. See Anne-Marie Slaughter, The Real New World Order, 76 FOREIGN AFF. 183, 183–84 (Sept./Oct. 1997); see also ANNE-MARIE SLAUGHTER, THE NEW WORLD ORDER (2004). The powerful argument made by Professor Slaughter, concerning the emergence of global networks of the various “parts” of the declining state, has gained considerable support by various scholars. See, e.g., Catherine Powell, The Role of Transnational Norm Entrepreneurs in the U.S. “War on Terrorism,” 5 THEORETICAL INQUIRIES IN LAW 47, 52–53 (2003); Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223 (1999). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 885 they shrink, state apparatuses in the developed world are enormous and still hold vast powers over citizens and residents within their territory. And though international law, multinational treaties, global economic forces, and global ideas are perhaps weakening the ability of states to decide on various policies by themselves, they still possess vast powers, de jure and de facto. If one considers the relationship between the state and the localities that are within its territory, the state usually has an enormous amount of control over them. Later, I will elaborate on the implications that this fact has over the way international law is implemented with regard to localities. It is often thought that globalization is a process of homogenization, an erasure of differences and flattening out of distinctions. According to this view, the global is the enemy of heterogeneity and of difference, and the local becomes the mark of uniqueness, singularity, and difference. The application of universal legal standards all over the world is seen as an example of the homogenizing effects that globalization possesses.26 Unique legal cultures with different values, distinct beliefs, and idiosyncratic normative worlds are being erased in favor of universal norms. However, recent research revealed the fact that as much as it homogenizes, globalization also produces heterogeneity, and though some of the processes that are considered part of it do indeed advance sameness, other global processes actually create difference and enhance distinctions.27 Indeed, the appearance of “the global” produces the very notion of “the local.”28 In a process of projection and reaction, “local” places are produced vis-à-vis the global forces that appear to be de-localized though they, too, clearly exist somewhere. Localities throughout the world thus become major targets of globalization, since they contain so many of the processes that it comprises. I now turn to examine the role of localities in globalization.

26. Interestingly, the French philosopher Etienne Balibar once argued that “it will always be possible to unify commercial law; on the contrary, conceiving what ‘crimes’ and ‘punishments’ are in two opposing moral traditions is far more difficult.” See Etienne Balibar et al., Globalization/Civilization 1, in DOCUMENTA X 774, 781 (1996). 27. See Etienne Balibar, Globalization/Civilization 2, in DOCUMENTA X 786, 788–90 (1996). 28. See MICHAEL HARDT & ANTONIO NEGRI, EMPIRE 44–46 (2000); DAVID HARVEY, THE LIMITS OF CAPITAL 374 (1984); APPADURAI, supra note 13, at 178–99; see also Richard T. Ford, Law’s Territory: A History of Jurisdiction, 97 MICH. L. REV. 843 (1999). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

886 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875

B. Cities and Globalization

As I have indicated earlier on, though the process of globalization did not skip any type of human settlement, cities have gained the attention of scholars as the main object of globalization. It is not surprising, given the primacy cities attain in modern social sciences, and the fascination of sociologists, historians, and economists with the image of the modern city and the social changes that it both manifests and brings about. Indeed, more than any other spatial phenomenon, the city has come to represent modernity, and urbanization is often understood as the symbol of the departure of human societies from traditional ways of living. Along this line of thought that privileges cities over other forms of human settlement, cities have often been depicted as the frontier of human civilization.29 In an era of globalization, cities are, again, the most prominent sites of the reconfiguration of the global order in which supra-national and sub-national entities gain control and influence over area once dominated by nation-states. The entities that enter the vacuum created by the decline of states are supposedly, on the one hand, supra-national entities (such as international bodies, multinational corporations and networks, and regional organizations like the EU and NAFTA), and on the other hand, sub-national entities such as localities, regions (within states), and local communities. Side by side with their assumption of the role previously played by the state, cities also become more permeable. The susceptibility of cities to extra-national intrusions has thus become the hallmark of the global cities literature. Saskia Sassen and others have documented in great detail crucial aspects of the process in which cities emerge as the locus of globalization. Cities are being influenced by monetary and fiscal policies of the World Bank and the International Monetary Fund (IMF).30 They are being subjected to development and planning schemes heralded by global institutions,31 and cities experience an influx of foreign goods and global corporations. Moreover, at an increasing pace, cities trade and interact with cities across national lines, leapfrogging above the bureaucracy and politics of their respective nation-states.32 Hence, globalization is not only perpetuated by global forces such as IOs and

29. See generally LOUIS MUMFORD, THE CULTURE OF CITIES (1938); LOUIS MUMFORD, THE CITY IN HISTORY: ITS ORIGINS, ITS TRANSFORMATIONS AND ITS PROSPECTS (1961); PETER HALL, CITIES OF TOMORROW (3d ed. 2002). 30. See William W. Goldsmith, From the Metropolis to Globalization: The Dialectics of Race and Urban Form, in GLOBALIZING CITIES, supra note 12, at 45–46, 53–54. 31. See generally ILLEGAL CITIES, supra note 12. 32. SASSEN, supra note 2, at 169–90; BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 887 transnational organizations (TOs), private transnational corporations, and multinational civil society movements, but also by purely national entities like cities and other localities. Thus cities are both targets of globalization and agents of it. They are becoming connected to other cities in their own states and also with cities in other countries, international financial institutions, and TOs. One could roughly divide the impact of globalization on cities into two main categories: first, an evolution of the complicated relationship between cities and global forces; second, a transformation in the traditional relations between localities and states, following the opening up of cities to the forces of globalization. While most literature pays attention to the economic, social, and technological aspects of these two types of transformations, this Article examines the legal changes that accompany them. The broad concept of globalization affecting cities includes many activities and phenomena that can be divided into four main categories: direct and indirect foreign investment in cities;33 an influx of foreign workers into cities;34 business relations between cities of different countries;35 and the invasion of foreign ideas and images into cities. While the invasion of foreign capital, workers, and goods is more intuitively understood, the meaning of the fourth category—the penetration of foreign ideas and images—is less so. The global dissemination of ideas and concepts include not only cultural images but also moral principles and values that mark globalization as much as the globalized economy. Indeed, this aspect of globalization is no less important than financial institutions that invest in localities or foreign workers that migrate to global cities. International human rights groups, international labor associations, transnational environmentalist groups, and other global civil society movements have intense interests—not financial, but rather moral and ideological—in events that take place across the globe. These varied interests are reflected in new international legal norms such as international human rights and environmental protection treaties36

33. See Christof Parnreiter, Mexico: The Making of a Global City, in GLOBAL NETWORKS, supra note 12, at 154–62; see also Felicity Rose Gu & Zital Tang, Shanghai: Reconnecting to the Global Economy, in GLOBAL NETWORKS, supra note 12, at 279–81. 34. See Sueli Ramos Schiffer, Sao Paulo: Articulating a Cross-Border Region, in GLOBAL NETWORKS, supra note 12, at 225–27. 35. A growing body of literature deals with the evolution of “networks of cities” and of “systems of cities” whereby world cities form webs economic and cultural relations. See David Smith & Michael Timberlake, Hierarchies of Dominance Among World Cities: A Network Approach, in GLOBAL NETWORKS, supra note 12, at 117–19. 36. See, e.g., A. Dan Tarlock, Local Government Protection of Biodiversity: What is BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

888 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 that take a specific interest in localities as the relevant decision- makers and new political building blocks. The vast majority of scholars that deal with the topic of globalization and localities have attempted to assemble a list of cities that can be called “world cities” or “global cities,” leaving out most localities and cities in the world as if they were unaffected by globalization. Though obviously disparate in its impact, globalization hits every human settlement. As we shall see, the reconfiguration of the relations between cities, states, and IOs and norms generates a transformation in the “magnetic field” in which all localities are situated, thus also influencing localities that have not been traditionally globalized. Even localities with hardly any foreign investment, foreign workers, and low penetration of global images or ideas, feel the push and pull of globalization. People leave these localities to move to global cities where they can find work and opportunities.37 Localities find themselves in a new competitive environment due to the enrichment of the few global cities and their de facto relative empowerment vis-à-vis the state;38 and they generally find themselves in a constant struggle with other localities over foreign direct investments and other foreign and global economic activity.39 If some localities want to resist globalization and development, they have to take special measures,40 and either way they, too, become objects of global interest in the sense that international norms and institutions begin to monitor, supervise, and attempt to regulate them.41

C. A New Legal Order: Trinity Instead of Two Pairs

Our discussion has thus led us to the conclusion that while

Its Niche?, 60 U. CHI. L. REV. 555 (1993). 37. Scholars have demonstrated that suburbanization is also linked with the emergence of global cities. See Goldsmith, supra note 30, at 46–48. 38. A striking example of such an impact can be found in the cases of cities that have been chosen to host the Olympic Games. Such cities usually undergo quick and radical development that has an impact on the whole region, including adjacent localities. See Solomon J. Greene, Staged Cities: Mega-Events, Slum Clearance, and Global Capital, 6 YALE HUM. RTS. & DEV. L.J. 161 (2003). 39. See, e.g., Jacqueline J. Ferber, The U.S. Foreign Direct Investment Policy: A Quest for Uniformity, 76 MARQ. L. REV. 805 (1993). 40. SAVITCH & KANTOR, supra note 12, at 20–23. 41. Once an international legal regime that sees localities as legal subjects evolves, it knows no difference between so-called “global cities” and non-global cities. All types of localities, as we shall see, become objects for democratic reform, accountability, efficient management, and decentralization. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 889 political and legal theory previously conceptualized two dominant legal pairs—World-State (international law and policy) and State- Localities (national-local government law and policy)—and the two pairs stood detached from one another and had no significant legal bearing on each other, the new world order has enmeshed the two pairs to create a novel trinity: World-State-Locality. In the previous legal constellation, the world, through its institutions, could form relationships with, pose demands to, and be addressed by states alone; but in the new global legal order the world is increasingly developing the same legal relationship with localities, independent of states. But the reason I refer to it as a novel trinity rather than the emergence of a third pair (world-localities), is that each of the actors develops legal relations with the two remaining ones, while changing its previous relationships. Thus, local governments can now use international law in their struggle against their states and other localities, and the world faces two distinct entities—the state and localities—and it no longer addresses them as if they were the same legal creature. This should come as no surprise, since other actors have been entering the global sphere, especially civil society parties such as NGOs and corporations. Local government, one could possibly say, is just another entity in the ever-expanding list of new partners that states and IOs are compiling as part of their effort to democratize themselves and open themselves up to popular participation. But equating localities with other civil society agents seems somewhat odd, since they are still not entirely private. Local governments are both public and political in the sense that in many countries across the world they are democratically elected and still perform many activities commonly understood to be public in their essence.42 Furthermore, localities are also territorial, much like states, and unlike other civil society actors. Therefore, the emergence of localities on the global stage marks a return to the age of independent and sovereign cities, albeit in a radically different global configuration. Despite the de facto formidable role localities have

42. Another interesting development in this respect is the appearance in many states of “private” localities: localities that are privately owned. Such private cities raise many interesting questions with respect to their status as either “private” or “public.” For a discussion of these new semi-urban creatures, see generally JOEL GARREAU, EDGE CITY: LIFE ON THE NEW FRONTIER (1991); Robert C. Ellickson, Cities and Homeowners Associations, 130 U. PA. L. REV. 1519 (1982); Lee Anne Fennell, Contracting Communities, 2004 U. ILL. L. REV. 829 (2004). It is fair to say that the logic of the private locality and of the homeowners association has spread worldwide and thus the international legal system of empowered localities is actually a system of privatized localities that looks more like any other civil society entity and not the public city. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

890 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 been playing in the new global order, academic writing in the legal international sphere has paid scant attention to them, while other non- state actors like provinces, cantons, states, and public and private corporations are identified as the markers of the end of the era of classical sovereignty. Yet, as I have stressed over and again, the current “return” of cities should not be mistaken for going back in time to the European city-states of the Middle Ages or to the ancient Greek city-states. This re-emergence of cities is happening in a particular historical configuration in which states still possess huge legal, economic, social, and political power over localities. And the world, previously a highly abstract and vague concept, is becoming more tangible, supported by a community of internationalized human subjects, international norms, and institutions that claim to represent it. Hence, local governments now face each other, mediated by the world and the norms and institutions that it comprises.

III. LOCALITIES’ LEGAL STATUS IN INTERNATIONAL LAW

In this Part, I describe the complicated and unexamined legal status of local governments in international law. I analyze the locality as a legal concept in international law. I then move on to surveying the positive legal status of localities in international law, and I try to locate the theoretical foundations of the ambivalent treatment of localities in international law.

A. The Locality as an International Legal Concept

At this point, it is proper to ask: What is a locality? It is a political, spatial, social, and economic phenomenon. But it is, most importantly, a legal creation. And as legal creatures, localities should be distinguished from other sub-national territorial entities such as cantons and provinces. The uniqueness of localities is based on the fact that while international law has dealt quite extensively with sub- national entities that make up federal states, there has been virtually no discussion, until recently, regarding localities. And while localities, much like other sub-national entities, are required to comply with their states’ international obligations, they are prevented from becoming a party to an international treaty. Thus, an important question that this section seeks to answer is, what is the source of the differential treatment of international law of these various territorial units? Following this investigation, this Article also identifies BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 891 important changes in this respect. But the local governments that this Article deals with should also be distinguished from another type of locality, called city-states or micro-states, that are internationally recognized states, and no longer maintain the dual nature of regular local governments.43 Such city-states have entirely collapsed into the state, and they do not suffer from the duality that characterizes most cities in the world. While most cities are both part of the state, but also autonomous and distinct from it,44 micro-states (or city-states) are merely states— identical to the state they comprise. And while most countries in the world have some form of internal political division scheme in which the state delegates powers and duties to sub-national territorial units, micro-states have almost none of that.45 Indeed, the internal political division of countries across the globe could be described as a continuum, stretching between two paradigmatic extremes: At one end lies the paradigm of the city-state or the unitary centralized state, where the whole territory is one city- state with complete identification between the locality and the state (or, where, despite the existence of spatial entities that might be called “cities”—and they might indeed be cities as an economic and social matter—these units have no legal powers and no autonomy);46 and on the other end is the paradigm of the decentralized state, where the central state is minimal and various territorial sub-national units are vested with meaningful legal powers.47 Most countries are located somewhere along this spectrum rather than at one of its ends, and local government law is the main instrument that defines how city-state-like or unitary-state-like the country is.48

43. Such micro-states include Singapore, Andorra, Monaco, Lichtenstein, the Vatican City, and more. For a detailed analysis of the status and history of micro-states in international law, see JORRI DUURSMA, FRAGMENTATION AND THE INTERNATIONAL RELATIONS OF MICRO-STATES: SELF-DETERMINATION AND STATEHOOD (1996). 44. See infra Part III.C. 45. Such city-states include Singapore, Hong Kong, and Dubai. 46. France is often depicted as an example of the centralized unitary state where cities are mere administrative subdivisions. In fact, however, localities in France are delegated with authority to provide various services and perform numerous activities, and they have significant discretion over these matters. 47. Scandinavian states are often used to exemplify this form of decentralized relations between localities and the state. 48. In fact, as a legal matter these two paradigms are identical: Both the city-state as well as the total-unitary state conceive of themselves, as a legal matter, as lacking any internal territorial hierarchy, since there is only a single legal territorial unit. However, as a spatial and economic matter, these two ideal types are obviously distinct and they represent the fact that even where cities do not possess ample legal authorities, their spatial existence can be rather meaningful. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

892 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875

B. Local Governments’ Lack of Legal Personality in International Law

Regardless of where the country lies on the spectrum I just described, local governments have no legal personality in formal international law. Classic documents of international law—the so- called uncontested sources of international law49—do not recognize localities as possessing legal person. No international treaty or convention of the UN, and almost no decision of the International Court of Justice (ICJ) mentions the existence of localities or recognizes them as legal entities under international law. Furthermore, only states can be members of the UN.50 And, strange as it may sound, the seemingly clear legal principle that denies localities’ legal person in international law, is hardly ever mentioned in international covenants, treaties, textbooks, or other documents. Without digressing too much into the profound debate regarding the functions and rationales of international law, there are several reasons for this tradition that lies at the heart of international law, some theoretical, others more pragmatic. The first, and perhaps the most obvious one is the traditional linkage between international law and the principle of sovereignty. The founding principle of international law is that states are sovereign within their territory and that international law is a self-imposed legal system to which states have to consent. Hence, only states should be the full subjects of international law,51 and they should be given the liberty to internally organize themselves, and be treated by external powers as unitary. Classic international law was not supposed to curb or diminish the unrestrained sovereignty of states within their territory, to regulate their internal affairs, or to contravene in any way the integrity of states. According to this view, the absence of localities from international law is no more unique than the absence of individuals, groups, associations, or corporations.52

49. I refer here to international treaties and conventions of the U.N., treaties between states, and conventions. See, e.g., Statute of the International Court of Justice art. 38, June 26, 1945, 59 Stat. 1055, T.S. No. 993. 50. U.N. Charter art. 4. 51. OPPENHEIM, supra note 17, at 19 (“Since the Law of Nations is based on the common consent of individual States, States are the principal subjects of International Law . . . . As a rule, the subjects of the rights and duties arising from the Law of Nations are States solely and exclusively.”). Later, Oppenheim qualifies this rule and admits that exceptions exist for belligerents, the Holy See (Vatican), and various individuals, etc. Id. at 20–22; see also SHAW, supra note 5, at 175–77. 52. Clearly, there are some good reasons to distinguish cities from other state actors. See infra Part V. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 893

Second, the establishment of an efficient international regime depends on a limited and finite number of legally recognized international persons. One commentator explained most lucidly: “To admit [to the UN] all the bits and pieces of former empires as independent states would not only debase the coinage of membership but would surely be more than U.N. structure could bear.”53 And even though this fear was mostly invoked by the demands of various regions and states within former federal and imperial regimes and not by demands of localities to become sovereign, the same logic applies even more strongly as regards local governments, and international law’s hostility towards granting them legal person was probably a result of such fear. Indeed, under this view, granting some localities full legal person would not only destabilize the UN structure and unbearably complicate international relations, but it would also encourage many localities to secede from their states in an attempt to acquire full international legal person. Third, and not unrelated to the previous point, is post-WWII hesitation to grant cities international status following what are seen to be failed experiments with free cities such as Krakow, Shanghai, Danzig, and Fiume, and internationalized cities/territories such as Tangiers and Jerusalem.54 Some of these experiments were targeted at solving problems of ethnic and national minorities that, following the emergence of the homogeneous nation-states, found themselves oppressed and in need of international protection. Cities where such minorities existed were thus freed from the grip of the state and put under international supervision;55 others were aimed at mediating

53. DAVID W. WAINHOUSE, REMNANTS OF EMPIRE: THE UNITED NATIONS AND THE END OF COLONIALISM 134 (1964). 54. Each of these cases presents a different legal and political reality, of course. Méir Ydit provides a thorough research into the history of these various experiments, as does Nathaniel Berman (the latter focuses on interwar cases, mainly the free city of Danzig and the territories of the Saar and Upper Silesia). See MÉIR YDIT, INTERNATIONALISED TERRITORIES: FROM THE “FREE CITY OF CRACOW” TO THE “FREE CITY OF BERLIN” (1961); Nathaniel Berman, “But the Alternative is Despair”: European Nationalism and the Modernist Renewal of International Law, 106 HARV. L. REV. 1792, 1820, 1875–78, 1886–93 (1993) (analyzing the case of Danzig—together with the case of the Saar region and Upper Silesia—as a demonstration of international law’s ambivalence towards nationality and statehood). 55. The most fascinating example is the Free City of Danzig. Danzig was part of the territories that were transferred from German to Polish sovereignty, thus turning previously German citizens into Polish ones, while securing their autonomy vis-à-vis the Polish government through the status of Danzig as a Free City. See Treaty of Versailles arts. 102– 04, June 28, 1919, 225 Consol. T.S. 188. The status of Danzig as a city, and not merely a semi-state or a semi-sovereign, was never taken seriously by scholars. I argue that despite the obvious fact that Danzig was indeed a unique creature, an experiment in sovereignty, it was nonetheless a city, and the inability of international law to address this fact is a mark of BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

894 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 between countries competing over resources and territories. Fourth, local governments are simply seen as integral parts of their states and it would therefore seem odd to even mention them as separate entities. Much like it would be redundant to mention explicitly the existence of the legislature, the executive, or any other state organ—let alone discuss the absurd idea of granting these state actors international legal personality—there is no need to mention localities, or debate their candidacy for an independent international personality. Indeed, localities can actually be understood precisely as those sub-national divisions not recognized in any way by international law, standing in contrast to sub-national units such as states and cantons in federal systems, which international law accommodates in various ways.56 It is therefore clear that the international legal order is based not only on the abstract understanding of the relations between sovereign states but also on a normative conception of a desirable hierarchy between various sub-national political divisions. In this regard, localities should not acquire any international legal status regardless of the exact division of powers between the state and its localities, even in cases where localities enjoy a high degree of independence and autonomy vis-à-vis their state. Not only is international law not currently built to fully incorporate a separate local entity, but such incorporation would also seem incompatible with the current understanding of the role of localities in the state. As we shall see, this understanding is changing. I now turn to analyze the way that the common conception of local governments as state organs has influenced their perception and treatment by classic international law. In order to demonstrate this point, I first give an overview of the basic tension regarding localities that exists in liberal thought. I then move on to describe the historical conceptualization of localities in international law.

C. Local Governments: Between Democracy and Bureaucracy

The tension between the bureaucratic and the democratic its ambivalence towards cities as unique creatures, as meaningful mediators between states and individuals (or groups). And although Danzig was not a city in the contemporary sense of the word but rather a sui generis, free-standing city, the lesson that can be drawn from it is remarkable: If cities are to assume, once again, legal personhood in international law, they could very possibly resemble the Free City of Danzig. 56. Many works have been written on this topic. For a comprehensive analysis, see MODELS OF AUTONOMY (Yoram Dinstein ed., 1981); Yoram Dinstein, Multinational, Federal and Confederal Arrangements, 17 T.A.U. L. REV. 231 (1992) (Isr.). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 895 conception of localities marks not only the field of local government law, but the nature of the city as a legal concept.57 In many domestic jurisdictions, the attitude towards localities reflects the same ambivalence: On the one hand, the bureaucratic conception envisions localities as an integral part of the state, an administrative convenience, or a local branch of the central national government;58 and on the other hand, the democratic conception understands local governments to be independent and autonomous corporations, reflecting the will of a local community, a semi-sovereign democratic entity distinct from and independent of the state. This dichotomy is why localities are often seen as too powerful and too powerless at the same time. The ambivalence is reflected in the fact that many domestic legal doctrines treat localities as internal divisions of the central state apparatus, but also set locally elected officials to run local government and grant them autonomy and freedom from central intervention. Given the current political and ideological commitments of liberal democracies, this tension cannot be entirely suppressed or overcome since each of these conceptions promises to achieve some of the most basic tenets of modern political liberalism. This dual nature marks local governments throughout the world, and renders their existence unique, as compared to other state organs and especially other sub-national territorial entities. The most dominant aspect of the bureaucratic model is its egalitarianism. If localities were mere subdivisions of the state, providing services according to central standards, applying state policies without (or at least with little) discretion, and being fully funded by the central government through the central tax-and-spend system, then equality throughout the national territory would be most

57. For a detailed description of the ambivalence of the main currents in liberal political thought towards localities, see Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1062–80 (1980) (Frug’s seminal work); GERALD E. FRUG, CITY MAKING: BUILDING COMMUNITIES WITHOUT BUILDING WALLS (1999). What characterizes various theoretical and policy-oriented positions as regards cities is their location on the spectrum between these two sides of the dichotomy between democracy and bureaucracy, without the ability or possibility to “give up” on either of its sides. See, e.g., Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1841 (1994); David J. Barron, A Localist Critique of the New Federalism, 51 DUKE L.J. 377 (2001); David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255 (2003); Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 COLUM. L. REV. 1 (1990); Richard Briffault, Our Localism: Part II—Localism and Legal Theory, 90 COLUM. L. REV. 346 (1990); Roderick M. Hills, Jr., Romancing the Town: Why We (Still) Need a Democratic Defense of City Power, 113 HARV. L. REV. 2009 (2000). 58. This was the famous holding of an early twentieth-century decision of the United States Supreme Court. See Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

896 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 effectively reached.59 Of crucial importance is also the Madisonian fear of local factions, that the fragmentation of the federation into powerful localities might bring about the emergence of extreme sub- national units that could jeopardize the rights of minorities within them. Only extending the political sphere and involving the whole citizenry in each important decision—that is, weakening the local units—will ensure the protection of minorities from contingent majorities.60 The bureaucratic model also fits with nationalist ideas about forming a cohesive citizenry, and is supposed to address the fear of the divided nation and of powerful sub-national territorial entities that would threaten the central sovereign. The democratic conception, however, stems from values that are as basic to liberalism as those that the bureaucratic advances. First and foremost is the idea that local self-government is the best “schoolhouse for democracy,” where citizens can experience self-rule and can become involved in, and informed about politics and the democratic process.61 No less important is the notion that autonomous local governments, chosen freely by their residents enable the latter to realize maximum liberty and freedom from state intervention with their lives.62 Such autonomous localities can also best reflect the heterogeneity and plurality of the people. Self- governing political sub-national units, according to this vision, can allow various groups—religious, ethnic, racial, cultural, and linguistic—to pursue their own goals and advance their particular values and interests, while still enabling them to be a part of a larger polity. In addition, powerful and independent local governments engender better provision of public services to their residents.63 Suspicion of the all-knowing central state has also contributed

59. Indeed, the French revolutionaries were strictly opposed to the idea of federalism, and cities that attempted to resist the egalitarian centralist vision, such as rebellious Lyon, were severely punished. 60. See THE FEDERALIST NO. 10, at 46–52 (Alexander Hamilton, James Madison, John Jay) (1787). 61. This position was articulated by Alexis De Tocqueville and John Stuart Mill. See ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 76 (F. Brown ed., 1863); JOHN STUART MILL, ON LIBERTY AND OTHER ESSAYS 121–22 (John Grey ed., 1991). 62. See generally ROBERT NOZICK, ANARCHY, STATE AND UTOPIA (1971) (stressing the libertarian potential of a political regime that is based on a weak central state and strong voluntary localities). 63. This is the core of the model that Charles Tiebout offered half a century ago in his famous article. According to the model that Tiebout developed, localities are best understood as complicated commodities that “consumer-buyers” purchase according to their preferences by moving from one locality to the other. This model suggests that public services are best provided by free-chosen territorial entities, since they reveal optimally the preferences of the people, and avoid the tragedy of public goods. See Charles Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 897 significantly to the attractiveness of the democratic conception. Public choice theory has undermined the belief in the ability of state organs to articulate the public’s interest, and has argued that smaller political units can often better reveal and advance the interests of their residents.64 The way a national legal system deals with this tension is reflected in where exactly it positions itself on the wide spectrum that runs between treating localities as purely bureaucratic state agents and treating them as purely democratic, semi-autonomous entities. The political decision regarding the exact role of localities vis-à-vis the state’s role is not a single decision; rather, it is a constant debate that legislatures, administrative agencies and courts are engaged in, and almost every decision that involves the division of powers between the state and localities reflects it: in local taxing powers; local planning and zoning; local business licensing; local marriage licensing; local education boards, and so on.65 However, as I have already mentioned, in classic international law, only states appear as full legal persons, bearers of rights and duties. Local governments are treated as mere subdivision of states, and have neither legal standing nor independent presence in formal international institutions. In this respect, international law seems to have chosen a clear position within the debate regarding the function of cities. As long as there are states, and as long as states are the basic “building blocks” of the international legal order, recognizing localities as legal persons threatens the sovereignty and supremacy of states and cannot happen without radically reshaping the current global order. Indeed, the special status of localities in international law is derived not only from the general liberal hostility of states towards local governments, but also from particular concerns of international law: the fear of the disintegration of the world into pre- modern city-states, and the fear of modern nation-states of the growing encroachment of the global upon their fragile sovereignty. But while international law has dealt for a long time—both in doctrine as well as in academic writing—with questions concerning federalism and the international status of cantons, provinces, states

64. This important point was made by various public choice theorists. See, e.g., James M. Buchanan, Rent-Seeking Under External Diseconomies, in TOWARD A THEORY OF A RENT-SEEKING SOCIETY 183 (James M. Buchanan et al. eds., 1980); MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1971); ROBERT COOTER, THE STRATEGIC CONSTITUTION (2000). For an elaborate exposition of public choice attack on centralism as well as critique on some of their pro-local bias, see William W. Bratton & Joseph A. McCahery, The New Economics of Jurisdictional Competition: Devolutionary Federalism in a Second-Best World, 86 GEO. L.J. 201 (1997). 65. See Frug, supra note 57, at 1062–80. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

898 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875

(and other components of federal states), it has ignored the legal status of localities. Yet, an undercurrent of the democratic conception of cities— of sovereign cities that are no mere administrative subdivision of their states and that possess authority over a wide range of issues—is perennial in international law. And much like the Free Cities of Krakow, Danzig, or the independent League of Hanseatic cities,66 local governments throughout the world are appearing to gain independent legal status in international law. To sum up: Although localities existed throughout human history as spatial, political, social, and economic phenomena, there is no coherent doctrine that explains their changing legal status in international law. Contrary to common belief, local governments have not always been entirely devoid of any legal status in international law. And while they were indeed largely ignored by international legal documents and scholars, localities sometimes managed to obtain varying degrees of legal recognition on the international plane.67 This complicated attitude towards local governments is the result of both basic tenets of international law, and also basic tenets of most modern nation-states. The combination of international law’s strong bias in favor of states as the entities deserving a full legal personality, and of modern nation-states’ desire to maintain their monopoly in areas pertaining to security and foreign relations has resulted in a legal scheme that has deprived cities of any chance to operate as actors on the international plane.

IV. THE EMERGENCE OF INTERNATIONAL/TRANSNATIONAL NORMS AND INSTITUTIONS THAT TRANSFORM LOCALITIES’ LEGAL STATUS

But if the attitude of international law towards local governments is so clearly biased and dismissive, how is it that localities have become, de facto, such important actors in world politics, culture, and economics? What are the legal changes that accompanied the emergence of local governments as world actors?

66. See GEOFFREY PARKER, THE SOVEREIGN CITY: THE CITY-STATE THROUGH HISTORY 194–212 (2004). 67. Indeed, despite the general oversight of localities by international legal documents and scholars, some cities managed to become legally recognized states in the international sphere. At other times, international law was willing to grant various cities a unique international legal status—albeit a haphazard one—as entities that were semi-sovereign and semi-autonomous. However, both micro-states and internationalized cities are exceptions to the rule. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 899

Indeed, despite its explicit refusal to directly acknowledge localities as legal persons, during the past fifty years (and especially during the past three decades), international law began accommodating localities in various manners that are in clear opposition to the doctrinal lack of legal personality. International law burdened localities with duties. Localities became objects of global, international, and transnational regulation. Local governments have assumed the role of enforces of international norms and standards, and they gained influence as political entities in the world political stage. These quite distinct characterizations of localities in the emerging global order add up to a picture in which localities are the active agents of globalization or internationalization. And while the social sciences discourse about global/world cities has seen cities (and only a rather short list of cities) as agents of economic, technological, or cultural change, this Article highlights an un-theorized, yet crucial role that many localities—and not only a select few global cities—have had in bringing about this change. This role of localities is a result of their unique position as active agents with legally defined powers, mediating between the world and the state, between individuals and their state, and between communities and the world. Localities’ functioning as normative mediators in the new world is an outcome of a combination between their domestic legal powers and the emerging global schemes of decentralizations, on which I shall elaborate below. Thus, localities have become, and will become more so, nodal points for radically distinct governance projects that have as their common goal to transform cities from mere subdivisions of sovereign states into legally empowered entities, able to advance goals and values that are different from their states’. In this process, localities become partners in the evolving new global order in which non-state actors are increasingly more dominant. This change is brought about by four modalities, through which localities become prominent actors on the world stage. First, localities become bearers of international rights, duties, and powers. Second, localities become important objects of international and transnational regulation. Third, localities increasingly enforce international norms and standards. Fourth, localities form global networks. In the following section, I discuss these modalities in detail.

A. Localities’ Assumption of International/Transnational Duties and Authorities

Though still short of becoming full international legal entities, BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

900 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 localities are gradually acquiring a wide range of international duties and authority. As state agents, localities are obligated to comply with duties states have assumed as signatories to international charters and covenants.68 Indeed, states are often required to take necessary measures to ensure such local compliance with their international obligations. In other cases, localities have been given domestic authority based either on their state’s international obligations or on customary international law. Hence, while not yet conferring upon localities the status of full international legal person, many international documents affect the duties of and authorities of localities. These duties cannot always be translated into international disputes in international tribunals, but they can actually impact the rights of individuals and other legal entities in various national settings. This is happening not because there is anything new about localities complying with their states’ international responsibilities, but due to changes in the legal context in which localities operate. First, the growing number of international agreements and the fast evolution of customary international law mean that localities now exist in a legal surrounding in which state’s monopoly over the determination of localities’ rights, duties, and powers is broken and international rules now also apply. Second, many legal systems are decentralizing, particularly in economic terms,69 making localities economically responsible for international obligations taken by their states, thus creating growing economic tensions between localities and states.

1. International Charters and Covenants and Customary International Law

Most official international treaties and covenants do not recognize the separate legal existence of localities. Only states are party to them, and only states can be sued in international tribunals if they are violated. Though localities are not full subjects of international law, they must comply with obligations and duties that the party states take on when signing such documents. And even

68. It is still impossible to sue localities in the International Court of Justice (ICJ) for such violations since only states have standing in the ICJ. However, the ability of individuals or other private parties domestically to sue localities that fail to comply with international obligations of their states is a matter of domestic law. For instance, localities might be compelled to provide various services to residents as a result of their states’ obligations under international instruments such as the Convention on the Rights of the Child or the International Covenant on Economic, Social and Cultural Rights (ICESCR). 69. THE WORLD BANK, CITIES IN TRANSITION: WORLD BANK URBAN AND LOCAL GOVERNMENT STRATEGY 1, 34 (2000) [hereinafter CITIES IN TRANSITION]. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 901 though local governments’ obligations stem from those of the state, they are those who often carry the burden of such duties and thus become de facto parties to these covenants. This fact has serious implications as far as localities are concerned, though they are not subjected to the ICJ’s jurisdiction. Due to the dual nature of local governments, according to which they are state organs on the one hand and autonomous (or at least independent) legal entities on the other hand,70 they can be sued in domestic courts for violating obligations that the state took upon itself in international covenants.71 This structure has some problematic aspects that stem from the fact that in many jurisdictions states have delegated many of their authorities—mainly the provision of various public services—to localities.72 These decentralizing measures, in themselves encouraged by various international entities,73 were often accompanied by a transformation of the funding schemes of localities from central funding to self funding. Thus, localities are expected to fund and provide services that the state took upon itself, but has devolved to localities. And indeed, local governments have been sued by private individuals and by other domestic legal entities in domestic courts, based on international duties and obligations of their states as a result of the localities’ status as state agents. And the more states across the globe are delegating various authorities and duties to localities, the more pressure is mounting on local governments to abide by the standards set out in such international documents. A recent Israeli case demonstrates this point. In Adalah v. Tel-Aviv, two civil rights groups challenged the common practice of Israeli localities to post names on street signs in Hebrew and English only, rather than in Arabic as well.74 There was no doubt that

70. This is the case in many jurisdictions across the world. 71. A state is obligated to adapt its laws so as to conform with the stipulations of the international treaties it is party to, according to the Vienna Convention on the Law of Treaties (1969). However, as long as the state did not ratify the treaty, it is not bound by it, and as long as it has not been incorporated into the domestic legal system by a legislative act, it is usually the case that the international treaty shall have no power in the domestic legal system. 72. For a survey of such measures in Israel, see Yishai Blank, Local Frontiers: Local Government Law and Its Impact on Space and Society in Israel 46–77 (unpublished S.J.D. Dissertation, Harvard Law School, 2002) (on file with author). 73. Indeed, this process itself has been closely linked with the rise in decentralization ideology and with global institutions such as the World Bank that has conditioned its support for various countries (especially in the developed world) in such structural changes and measures. See infra Part IV.B.2. 74. HCJ 4112/99 Adalah v. Municipality of Tel-Aviv [2002] IsrSC 46(5) 393. The petition was brought against four localities only (Tel-Aviv, Ramleh, Lydah, and Upper BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

902 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 domestic law mandated localities to place names on street signs within their jurisdiction.75 The plaintiffs argued that according to the United Nations International Covenant on Civil and Political Rights (ICCPR)—ratified by the State of Israel in 1991—the state had to respect and protect the language of minorities, and since localities were state organs, they were bound by this duty. The reason localities fought the petition was that it would cost them a lot of money, money they would not receive from the state due to their incorporation as independent public corporations vested with exclusive authority over street signs. The Court rejected the claim that the Covenant established a positive duty upon the state and the city, yet accepted the petition nonetheless, based on the grounds that failing to use Arabic amounted to discrimination. However, had the Court ordered localities to use Arabic because the ICCPR included a positive duty to use minority language on street signs, it would mean that localities would fund with local taxes duties that the state assumed in the first place. In another recent Israeli case, some of the tensions arising from the duties placed upon local governments—also according to UN covenants—were adjudicated.76 As a part of the structural shift from state funding of various public services to local funding,77 the government has cut the budget for public libraries operated by local governments throughout the country, and refused to continue to fund them in equal shares with localities. The Union of Local Authorities petitioned the Israeli Supreme Court and argued that the state is required to continue funding public libraries also based on its obligations according to the International Convention on Economic, Social and Cultural Rights (ICESCR).78 While accepting the general claim regarding the domestic applicability of international norms (and, apparently, their specific potential applicability to state-local government relationship), the Court rejected the petition in light of various amendments that were adopted into the specifically domestic law. Thus, regardless of the outcome of this dispute, it is evident that

Nazareth), chosen for the reason they had an Arab minority in them. 75. See Municipalities Ordinance, art. 235(4), 249 (Isr.). 76. HCJ 2376/01 Union of Local Authorities v. Minister of Science, Culture and Sport [2002] IsrSC 56(6) 803. 77. This transformation occurred gradually since the 1980s. During the past two decades, localities’ funding shifted from being mostly state-based to being primarily self- based. The state’s participation in funding the activities of localities dramatically decreased while the share of localities themselves in funding those activities rose significantly. For a detailed description of this crucial evolution, see Blank, supra note 72, at 46–77. 78. The Court also referred to the Public Libraries Manifesto issued by UNESCO in 1994. See HCJ 2376/01 Union of Local Authorities v. Minister of Science, Culture and Sport IsrSC [2002] 56(6) 807. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 903 international norms have the potential to alter the domestic duties and authority of localities, as well as those of states towards localities. The Canadian case of the Town of Hudson exemplifies another way in which international covenants can become not only a source of duties, but also an authorizing source for localities.79 In Hudson, licensed lawn care companies sought a declaration of invalidity of a by-law passed by the city of Hudson, prohibiting the use of pesticides within its territory, except for specified purposes and locations. Among other arguments, the plaintiffs maintained that the city was not authorized to enact the said by-laws. Dismissing the petition, the Court interpreted the authorizing act—the Canadian Cities and Towns Act that provided for regulation by municipalities “to protect the health and well-being of resident”—as authorizing the city to enact a by-law that protects the environment.80 The Canadian Supreme Court ruled that giving the town the right to enact the debated by-law was “consistent with principles of international law and policy,”81 and was thus a plausible reading of the authorizing statute, among other reasons. The relevance of international law and policy, explained the Court, is derived from the interpretative principle that was set in Baker v. Canada, that “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.”82 The Court further found that environmental protection (and especially the “precautionary principle”83) was a well-accepted international law principle, and the town’s authorization should be construed in a way that will allow it to promote this international principle.84 These cases demonstrate the ways in which international duties, standards, and norms are increasingly imposed upon localities. On the one hand, because localities are state agents and as such must comply with their state’s expanding international obligations, they are becoming even more dependent on their states’ behavior. On the other hand, international law empowers localities since it creates direct authorization that might conflict with the state’s policies and interests. Coupled with fiscal decentralization schemes,

79. See Canada Ltee v. Hudson (Ville), [2001] S.C.R. 241. 80. The Cities and Towns Act, R.S.Q., ch. C-19 (1977) (Can.). 81. Hudson, S.C.R. 241 at 41. 82. Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.R. 817, 861. A similar interpretive principle also prevails in Israel. See CA 131/67 Kamiar v. State of Israel IsrSC [1968] 22(2) 85; CA 3112/94 Abu-Hassan v. State of Israel [1999] IsrSC 53(1) 422. 83. This principle can be found in both treaty law as well as in customary international law. Hudson, S.C.R. 241 at 42. 84. Id. at 42–44. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

904 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 these developments cause different types of conflicts among localities and between states and local governments.

2. Regional and Other Non-UN International and Transnational Treaties

International law creates a distinction between localities and other sub-national territorial entities such as provinces and states as regards transnational treaties and agreements. While there is an enduring debate about the ability of the latter group to engage in various international treaties,85 there is implicit agreement among scholars and international policy makers that local governments are prevented from doing so. And while there is a considerable volume of writers who claim that sub-national units in federal regimes can engage in internationally recognizable and enforceable treaties,86 there is no discussion or practice of local governments doing so. Once such transnational agreements are signed by authorized parties, localities must conform to these treaties and agreements as state agents, as was discussed in the previous section. The past three decades have witnessed a huge surge in multilateral, regional, and transnational agreements and treaties.87 Two dominant examples are the EU88 and NAFTA,89 but in addition to those are hundreds of other, more specific agreements between states. Such treaties, when created in accordance with international

85. There is no doubt that such sub-national territorial units can enter regular agreements with other entities, and the only question is whether they can be a party to an international treaty. See generally LUIGI DI MARZO, COMPONENT UNITS OF FEDERAL STATES AND INTERNATIONAL AGREEMENTS (1980). Such debates are taking place at the general international level but also in the different national legal systems. Some constitutions (such as the American one) specifically prohibit their sub-federal components to engage in treaties with other states, while other constitutions condone such activities. For a discussion of these issues, see Dinstein, supra note 56, at 270–77. 86. The common understanding is that the capacity of a canton to be a party to international treaties is dependent on the domestic constitution. Though such a clear statement does not appear in the Vienna Convention on the Law of Treaties (1969), most commentators believe it to be the rule. See Dinstein, supra note 56, at 273–75. 87. See, e.g., Noemi Gal-Or, Private Party Direct Access: A Comparison of the NAFTA and the EU disciplines, 21 B.C. INT’L & COMP. L. REV. 1 (1998). 88. The EU is a complicated web of institutions and treaties. The founding documents are the following: Treaty Establishing the European Coal and Steel Community, Apr. 18, 1951, 261 U.N.T.S. 140; Treaty Establishing the European Atomic Energy Community, Mar. 25, 1957, 298 U.N.T.S. 167; Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11; Treaty Establishing a Single Council and a Single Commission of the European Communities, Apr. 8, 1965, 4 I.L.M. 776 (1965). 89. North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 905 law and in compliance with domestic laws that regulate the ability of the state and its organs to sign such agreements, are official sources of international law and bind the parties to them, including the local governments that are state agents for that particular matter. Indeed, the questions arising from considering local governments to be possible parties to such international treaties are formidable. And as much as they are difficult to answer with respect to sub-national units in federal regimes, they are even harder to resolve when localities are concerned.90 In this Article, I do not attempt to deal with these complex questions, but rather I attempt to shed light on the fact that under the new world order of international treaties local governments are being exposed and submitted to international norms, obligations, and tribunals.91 One dominant area in which localities as bearers of duties and as objects of regulation have been dramatically influenced by non- UN international treaties is that of environmental protection and natural resources management. Eyal Benvenisti describes the emergence of positive international law regarding transboundary resources.92 According to his findings, where various natural resources such as rivers and water reservoirs required transboundary cooperation, there emerged treatises and webs of institutions that facilitated and sometimes even forced cooperation, not only between states, but also among local governments. Benvenisti shows how the classic international model of unitary and homogeneous states fails to reflect the reality of the heterogeneity of states, and thus does not address the problems that this heterogeneity creates: difficulties with cooperation that cause inefficiency, a democratic deficit, and other disadvantages.93 Under the umbrella of various treaties and agreements concerning the control of such resources, localities were forced to cooperate with one another; and they were also authorized to engage in various voluntary agreements to better use and maintain these resources.

90. Such questions include, for example, whether individuals have legal standing to bring claims in front of courts; which courts would be those to adjudicate disputes arising from such treaties; problems of separation of powers and delegation of authority (legislative and other) to localities, and more. 91. Anupam Chander had recently dealt with the challenge this structure poses to conceptions of democracy and accountability, since these tribunals (such as the World Trade Organization’s) are often appointed, rather than elected, and are not attached to any single democratically elected government. See generally Chander, supra note 11. 92. See EYAL BENVENISTI, SHARING TRANSBOUNDARY RESOURCES: INTERNATIONAL LAW AND OPTIMAL RESOURCE USE 156–200 (2002). 93. Id. at 46–63. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

906 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875

During the past decade and a half, various environmental agreements that target localities have been signed. Indeed, the more that the understanding that localities are major actors without whose cooperation international environmental protocols and treaties cannot be implemented, the more explicit cities’ obligations become in such documents. It is with precisely this concern in mind that Agenda 21, the most comprehensive of UN environmental documents, recommends the development and strengthening of mechanisms, including those “at the lowest appropriate level,” in order to ensure the protection of the environment.94 But localities are not only passive entities on which international duties and powers are imposed. They also take an affirmative approach, initiating and forming transnational law by entering into agreements with localities across borders, which, when authorized by their states, might be recognized as part of international law. As Benvenisti illustrates, sometimes localities reach transboundary agreements over water resources even when no treaties between their states exist and without the consent of their states. For instance, Palestinian and Israeli localities reached a cooperation agreement in order to solve the problem of a polluted water basin that the two shared.95 Indeed, as I shall argue later on, although I am currently stressing the top-down aspects of the international regulation of localities, another strong force contributing to the rise of localities in international law is a bottom- up approach, under which local governments are taking affirmative action.96

B. Localities Becoming Objects of Global, International, and Transnational Regulation

This section explores the attempts currently made by numerous international bodies to regulate localities and their legal relations with their states. Targeting localities as objects of regulation means that the physical planning, economic structure, urban development, housing schemes, and poverty management

94. See Agenda 21, Annex II, Report of the United Nations Conference on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1 (vol. I) (Jan. 1, 1993). Furthermore, the Agenda calls for the “decentralization of government services (relating to water services management) to local authorities, private enterprises and communities,” thus placing localities at the heart of the environmentalist agenda. Id. ch. 18, § 12(a)(i); see also BENVENISTI, supra note 92, at 143 n.35. 95. Id. at 140–41. 96. See infra Part IV.C. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 907 become the business of international and global institutions and not solely of the locality and national governments. In addition, various UN agencies, IOs, and transnational entities like the EU have become increasingly interested in transforming relations between localities and their states, as demonstrated through efforts to promote an agenda of “decentralization” and “subsidiarity.” These two concepts refer to political and legal schemes according to which decision- making powers and the provision of public services should be devolved to the smallest jurisdictions that can efficiently perform them. Indeed, many international documents and institutions have been targeting localities as objects for regulation concerning what they should look like and what their relationship with the nation-state should be. As I mentioned earlier on, most states form the relationship between the central and local governments through their domestic laws. The relationship includes what authority localities should possess, what their duties should be, how much discretion they should have when using their powers, and what the level of fiscal dependence or autonomy of cities vis-à-vis their states should be. These legal variables factor in when assessing where along the spectrum the state stands: how close it is to the unitary and centrally controlled end, or how much it resembles the decentralized, federal- like end of the spectrum. Indeed, in recent years, the outcome of various activities of international institutions has been the legal regulation of where various domestic regimes should lie along the continuum of centralization versus decentralization or bureaucracy versus democracy. Due to the variety of institutions and documents that can be mentioned here, I shall give a few major examples demonstrating how profound this development has been. These different institutions and documents share a renewed interest in localities that has at its core the view that local governments are existing entities that ought to be transformed and reconfigured according to various ideological commitments, social visions, and economic goals. Together, they form a new international, localist agenda.

1. United Nations Reconfiguration of Localities: Decentralization and Democracy

One of the most lucid manifestations of the rise of localities in the new world order is the recent UN effort to reconfigure and regulate the relationships between local and state governments and among localities within states. This reconfiguration and its rationales are in line with current ideologies that guide the new global BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

908 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 governance project that many international institutions have been advancing for the past fifteen years: decentralization, market-based economic reforms, democratization, and community empowerment.97 A huge volume of activities performed by the United Nations Centre for Human Settlements (UNCHS) demonstrates this important transition, whereby localities become objects of regulation and vessels through which various international policies are advanced. UNCHS—later renamed UN-Habitat—was established in 1976 under the Vancouver Declaration on Human Settlements (Habitat I).98 The Centre was authorized by the General Assembly “to promote socially and environmentally sustainable towns and cities with the goal of providing adequate shelter for all.”99 However, this development-oriented agency later became the main engine for a much more profound shift in how localities have been viewed by international policymakers. Indeed, Habitat has evolved into an international body that promotes the transformation of “human settlements” (as various UN documents refer to them) into independent and empowered actors, bringing them closer to obtaining the status of international legal subjects. At first, then, UNCHS was mainly a development-oriented agency, lacking any meaningful localist or city-oriented ideology. According to the Vancouver Declaration of 1976, localities were the mere “instrument and object of development,”100 rather than independent entities representing voluntary or democratically governed human associations. Habitat I addressed only national governments and international organizations and called upon them to take various actions, but ignored the local governments themselves as free agents or as better representatives of local population. In other words, Habitat I reflected the classic position of international law as

97. Scholars have observed a similar ideological and rhetorical shift in policies and documents of international and transnational institutions. See, e.g., Kerry Rittich, The Future of Law and Development: Second Generation Reforms and the Incorporation of the Social, 26 MICH. J. INT’L L. 199 (2004); Robert Wai, Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization, 40 COLUM. J. TRANSNAT’L L. 209 (2002). 98. The Vancouver Conference “was convened following recommendation of the United Nations Conference on the Human Environment and subsequent resolutions of the General Assembly, particularly resolution 3128 (XXVIII) by which the nations of the world expressed their concern over the extremely serious condition of human settlements, particularly that which prevails in developing countries.” United Nations Conference on Human Settlements (Habitat I), May 31–June 11, 1976, Vancouver Declaration on Human Settlements, ¶ 1, U.N. Doc. A/CONF.70/15 (1976) [hereinafter Vancouver Declaration]. 99. U.N. Habitat, United Nations Human Settlement Programme, Overview: Mandate, available at http://www.unhabitat.org/about/mandate.asp (last visited Apr. 11, 2006). 100. Vancouver Declaration, supra note 98, pt. I, ¶ 2. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 909 regards localities: As a matter of legal personality, localities are subsumed by their states that represent them as well as their interests, and they exist only as instruments for the implementation of nationally as well as internationally imposed policies. Over the years, this approach has changed, slowly but dramatically. The second United Nations Conference on Human Settlements (Habitat II) of 1996101 was already influenced by an altogether different ideology. Though “development” was still a primary concern of the Istanbul Declaration and the Habitat Agenda,102 new concepts and policy proposals emerged as equally important impetuses for the project, practically turning UNCHS into a platform for advancing a clear and novel localist agenda. Hence, alongside development-related issues such as sustainability, poverty, unemployment, homelessness, and pollution,103 new ideological commitments appeared, such as decentralization, local democracy, and public participation in decision making.104 Furthermore, local governments were recognized as the “closest partners” of central governments and “as essential [as states] in the implementation of the Habitat Agenda.”105 Indeed, much like Sassen and others argue, globalization brings with it the potential to “destabilize older hierarchies.”106 The international turn to local empowerment should also be understood as an attempt to destabilize non-democratic regimes. As I have already suggested, localist ideology sees local democracies as schoolhouses for democracy, and the belief that local democratic decision-making can destabilize authoritarian regimes and inculcate democratic tendencies in the population has been a perennial motivation for such international localist schemes.

101. The Conference took place in Istanbul on June 1996. See United Nations Conference on Human Settlements (Habitat II), June 3–14, 1996, Istanbul Declaration on Human Settlements, U.N. Doc. A/CONF.165/14 (Aug. 7, 1996) [hereinafter Istanbul Declaration]. For an overview of Habitat II, see Janet Ellen Stearns, Voluntary Bonds: The Impact of Habitat II on U.S. Housing Policy, 16 ST. LOUIS U. PUB. L. REV. 419, 420–29 (1997). 102. See United Nations Conference on Human Settlements (Habitat II), Istanbul, Turk., June 3–14, 1996, The Habitat Agenda, Annex II, Report of the United Nations Conference on Human Settlements (Habitat II), U.N. Doc. A/CONF.165/14 (Aug. 7, 1996) [hereinafter Habitat Agenda]. 103. Istanbul Declaration, supra note 101, ¶¶ 4–11; Habitat Agenda, supra note 102, ch. III, ch. IV, pts. B–C. 104. Istanbul Declaration, supra note 101, ¶¶ 12–15; Habitat Agenda, supra note 102, ch. IV, pt. D. 105. Istanbul Declaration, supra note 101, ¶ 12. 106. Saskia Sassen, The State and Globalization: Denationalized Participation, 25 MICH. J. INT’L L. 1141, 1148–50 (2004). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

910 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875

Thus, the Habitat Agenda calls for the formation of “national and international local authority associations/networks” and “other national and subnational capacity-building institutions.”107 More specifically, the Agenda recommends that governments review and revise legislation in order to increase local autonomy and participation in decision-making, implementation, and resource mobilization; educate citizens at the local level; train local officials; combat local corruption; increase local efficiency; and strengthen local cooperation with the UN and other international networks.108 Thus, the Habitat Agenda reconceptualizes and reconfigures local governments and their relationship both with their states, as well as with IOs. It serves as a manifestation of the emergent new trinity of locality-state-world, as international bodies are becoming heavily involved and invested in the transformation of state-local relations. The Agenda stands in stark opposition to the previous international legal order that was seemingly indifferent to the internal political structure of states, how much autonomy localities enjoy vis- à-vis the state, how independent from the state their fiscal structure is, and what services they provide their residents. The Habitat Agenda demonstrates that deference to states as regards their power- sharing with localities is no longer the attitude of the international regime, and in its stead there is a clear position advocating decentralization and increased local autonomy and efficiency. The UN took this path to a still greater extreme. In 1998, following Istanbul, the UNCHS and the World Association of Cities and Local Authorities Coordination (WACLAC)109 published a document entitled “Towards a World Charter of Local Self- Government,” the result of which is envisaged to be “promulgated as an official United Nations Convention.”110 Here, the evolution of the localist ideology reached a global scale: decentralization became a dominant theme, overshadowing, if not replacing altogether, old-style development strategy and ideology.111

107. Habitat Agenda, supra note 102, ch. IV, pt. D, § 1, ¶ 178. 108. Id. ch. IV, pt. D, § 2, ¶ 180. 109. WACLAC was established in 1996 by an alliance of associations of cities and local authorities whose mission was to “represent the local government sector in the international arena and in particular with the United Nations.” See World Association of Cities and Local Authorities Coordination (WACLAC), http://www.camval.org (last visited Jan. 15, 2006). 110. See United Nations Centre for Human Settlements (Habitat) and World Association of Cities and Local Authorities Coordination (WACLAC), Towards a World Charter of Local Self-Government ¶ 4 (May 1998), available at http://www.unchs.org/unchs/english/ feature/charter.htm. [hereinafter World Charter]. 111. As Rittich acutely observes, development ideology and policy has also radically changed in recent years: BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 911

The most important innovations that appear in the 1998 document are the following three principles that are supposed to guide the Charter-to-be as regards cities: subsidiarity, proximity, and autonomy. These principles dictate that decisions should be taken at the level “closest to the citizens” while “only those tasks which the local level cannot effectively carry out alone should be referred to higher levels.”112 In addition, localities are seen as important “partners” in the process of strengthening democracy throughout the world. Indeed, the new jargon of localism is increasingly using justifications from democracy, relying on the notion that localism is a key element in breeding democracy in developing countries and elsewhere. Although it echoes Tocqueville’s idea that autonomous localities are the best schoolhouses for democracy,113 the UNCHS idea of local democracy is nevertheless distinct: It highlights the utility of local democracy as an instrument for stability, economic development, and independence, and perhaps even a safeguard against radicalism, terrorism, and authoritarianism.114 The centrality of the concept of subsidiarity in current global governance projects—in this case UN’s activity concerning local governments—is highly important as it marks a radical shift in the conception of the locality vis-à-vis the state.115 Originating in Catholic theology,116 the principle of subsidiarity has come to embody the strange but currently happy marriage between libertarian values of individual liberty, economic efficiency, and local experimentation117 with communitarian values of community

[T]he development and market reform projects . . . no longer revolve solely around the promotion of economic growth; at least at the rhetorical level, social issues have now been accepted both as ends of development in and of themselves and as important factors to the achievement of general economic growth. Rittich, supra note 97, at 202–03. 112. World Charter, supra note 110, ¶ 1. 113. See supra note 57 and accompanying text. 114. It is perhaps ironic that Madison argued the opposite: Strong localities, he argued, are likely to become breeding places for radicalism and extremism. In his view, a strong federal government is needed in order to mitigate the extreme tendencies that local popular majorities are prone to develop. See THE FEDERALIST NO. 10 (James Madison), supra note 60, at 48–52. 115. One commentator went so far as to say that the principle of subsidiarity has become a structural principle of human rights law. See Paolo G. Carozza, Subsidiarity as a Structural Principle of International Human Rights Law, 97 AM. J. INT’L .L. 38 (2003). For a discussion of the principle of subsidiarity and its advantages, see BENVENISTI, supra note 92, at 138–43. 116. See Robert K. Vischer, Subsidiarity as a Principle of Governance: Beyond Devolution, 35 IND. L. REV. 103, 108–15 (2001); Carozza, supra note 115, at 40–42. 117. See John O. McGinnis, Reviving Tocqueville’s America: The Rehnquist Court’s Jurisprudence of Social Discovery, 90 CAL. L. REV. 485, 510 (2002). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

912 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 autonomy and solidarity. The theory of subsidiarity holds that central governments should be limited to a subsidiary function, only acting where a more immediate local level is unable to act, or fails to do so.118 Subsidiarity has come to dominate international human rights law,119 EU law,120 and conservative jurisprudence in the United States.121 Contemporary proponents of the principle of subsidiarity rely on the advantages of jurisdictional competition and, more generally, on the economic efficiency of the devolution of powers to localities. Applying subsidiarity to localities, and thus declaring local governments as the primary representatives of the people, and the primary providers of public services, thus turning the state into a secondary “backup” contractor and a second-best representative of the will of the people, is a hundred-and-eighty degrees shift in the received wisdom of international law regarding localities. By no chance, the Draft of the European Constitution also adopted the principle of subsidiarity as regards localities in the organization of the EU.122 This change has the potential of transforming the basic political unit of international law. Furthermore, the Draft of the World Charter grants local governments various important procedural rights, the right “to define appropriate forms of popular participation and civic engagement in

118. See, e.g., George A. Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 COLUM. L. REV. 331, 336 (1994); Andrew Koppelman, How “Decentralization” Rationalizes Oligarchy: John McGinnis and the Rehnquist Court, 20 CONST. COMMENT. 11, 12 (2003). 119. See Carozza, supra note 115, at 39. 120. See, e.g., Denis J. Edwards, Fearing Federalism’s Failure: Subsidiarity in the European Union, 44 AM. J. COMP. L. 537 (1996). 121. See Vischer, supra note 116, at 103–04. 122. Drafted by the European Convention and signed by its leaders on October 2004, the Draft Constitution was rejected by numerous Member States following its popular rejection in referenda. The Draft Constitution extends the important principle of subsidiarity: For the first time it includes not only the national sphere (vis-à-vis the EU), but also the local and regional ones. Prior to the constitution, the principle of subsidiarity only dealt with the relationship between the EU and national governments. Now, the Constitution clearly states that the EU cannot take decisions if these can be taken at least as effectively at the national, but also at the local or regional level. It is hard to overstate the radical nature of this extension. Article I-11 sets forth the following formulation of the basic principle of subsidiarity: Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. Treaty Establishing a Constitution for Europe art. I-11, 2004 O.J. (C 310) 1, 14. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 913 decision-making,”123 the right “to form associations for the defence and promotion of their common interests,” provision of services and cooperation with other localities,124 the right to be consulted when other levels of government prepare legislation affecting them,125 the right to form international associations,126 and “the right of recourse to judicial remedy in order to safeguard their autonomy.”127 Note that these procedural rights are safeguards given to localities as against their states, through which the world appears as the protector of localities from their overly dominating states. Indeed, the vision in the Draft is of a minimal state, a back-up state that intervenes with local autonomy and local decision-making only in relatively rare cases, while the rule is local autonomy and subsidiarity. Thus, the Charter, if ratified, might radically transform the way localities look throughout the world, as well as states. The adoption of a general obligation of states to decentralize, the embrace of the principle of subsidiarity and the implied mistrust of states it reflects, and the encouragement of localities throughout the world to become more independent and self-reliant marks an ideology that until recently was almost anathema to the ideology of international law and its focus on states and state actors. Even if this process can be seen as merely an extension of international law’s growing acknowledgement of nonstate actors, it is still crucial to see that the Charter takes another giant leap forward in requiring states to share their power with lower tiers of government. Yet, the Draft does not go so far as to equate localities’ status to that of states, and it leaves important veto powers in their hands. States still hold the most important powers of ratifying the Charter,128 “specify[ing] the categories of local or regional authorities to which it intends to confine the scope of the Charter,”129 and “specify[ing] the territory or territories to which th[e] Charter shall apply,” thus exempting certain localities from the Charter’s provisions right from the start.130 States can also decide to withdraw from the Charter altogether (with due notice to the Secretary General),131 or to amend the territorial application of the Charter, thus creating special exemptions for various localities or including

123. World Charter, supra note 110, art. 10. 124. Id. art. 11. 125. Id. 126. Id. art. 12. 127. Id. art. 13. 128. Id. arts. 14, 18–19. 129. Id. art. 15 130. Id. art. 20(1). 131. Id. art. 21. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

914 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 localities that were previously exempted, at their will.132 Despite the formal ability of states to control and contain the process of radical decentralization that entering the Charter might lead to, these formal powers might prove sterile. Leaving aside the option that if widely accepted the Charter might eventually become jus cogens, internal developments might lead to states’ inability to withdraw from the Charter. Studies throughout the world demonstrate that once given authority and autonomy, and the more local governments become major actors in national politics and economy, the harder it is to keep them docile and subservient to states. I deal with this point below. On June 2001, the General Assembly reaffirmed that the Istanbul Declaration and the Habitat Agenda will remain the basic framework for sustainable human settlements development in the years to come.133 This process culminated early in 2002 with the adoption of a General Assembly resolution,134 in which governments strengthened the status of UNCHS by transforming it into a fully recognized program, renamed as the United Nations Human Settlements Programme (UN-Habitat). UN-Habitat was given the status of a subsidiary of the General Assembly and put under the Economic and Social Council (ECOSOC), which coordinates the work of all the UN’s fourteen specialized agencies. What is slowly emerging from activities such as the UN’s Habitat Agenda is an international set of rules that govern localities with a specific set of ideas about good government and the ideal state. True, it is still unclear when, and whether at all, such a charter will become an official international covenant. Either way, what we see is a gradual evolution of the local government as an international legal concept. This is achieved not only through concrete policy measures, but also by a set of concepts that accompany the reconfiguration of the relationship between localities, states, and IOs. In this restructuring of the basic political units of the international and national order, distinct and even opposing discourses and

132. Id. art. 20(2)–(3). 133. Declaration on Cities and Other Human Settlements in the New Millennium, G.A. Res. S-25/2, U.N. GAOR, 25th Sp. Sess., 6th plen. mtg., U.N. Doc. A/Res/S-25/2 (June 9, 2001); see also Role of Local Authorities, Other Partners and Relevant United Nations Organizations and Agencies in the Review and Appraisal Process: Progress Report on the Preparations of the Proposed World Charter of Local Self-Government, U.N. Doc. HS/C/PC.1/CRP.7 (Apr. 20, 2000) (anticipating the resolution). 134. Strengthening the mandate and status of the Commission on Human Settlements and the status, role, and functions of the United Nations Centre for Human Settlements (Habitat), G.A. Res. 56/206, U.N. GAOR, 56th Sess., 90th plen. mtg., U.N. Doc. A/Res/56/206 (Feb. 26, 2002). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 915 ideologies that support the same project are coming together: decentralization, localism, privatization, multiculturalism, and democratization. The political units that embody these concepts change and transform them, giving them new meaning, and while doing so are also transformed themselves. And yet, it is crucial to note that much like everything else in the new world governance project, this new system of rules is not determined or orchestrated by a well defined set of institutions, but rather by a multitude of decentralized entities, some international like the UN, some national, and others local. Thus, the globalization that is changing the face of localities throughout the world differs from traditional internationalization. While the latter refers to a centralized plan coordinated by so-called official international bodies such as the UN, the former is emerging in many places, both top- down and bottom-up, and is led by different actors, often competing among themselves on resources and influence, and disagreeing on the desired goals and values.

2. The World Bank’s Regulation of Localities: Transforming Decentralization

For the World Bank, one the major actors in contemporary global governance, the focus on localities is part and parcel of its new development strategy, augmenting the traditional goal of furthering economic growth with advancing participatory democracy and other “social” goals.135 The Bank’s policies concerning localities are also intertwined with its assessment that the world is moving towards urbanization, and the prediction that “within a generation the majority of the developing world’s population will live in urban areas and the number of urban residents in developing countries will double, increasing by over two billion inhabitants.”136 The attention given to localities, and particularly to urban areas, is an outcome of the fact that more and more people live in urban settings that need to become more livable,137 but it is also a result of an idea that decentralization is a necessary condition for economic growth. Thus

135. The Bank has indeed integrated into its policies—at least rhetorically—the need to preserve “cultural heritage” and to induce “sustainable development.” 136. CITIES IN TRANSITION, supra note 69, at 1. According to the Bank’s predictions, by the year 2020, urban residents will constitute the majority everywhere in the world except for south Asia and Sub-Saharan Africa. Id. at 32; see also The World Bank, World Development Indicators 2005, http://www.worldbank.org/data/wdi2005/wditext/Section1_ 1_7.htm#fg2. 137. Making cities “livable” is one major theme that World Bank’s documents advances. See CITIES IN TRANSITION, supra note 69, at 97–105. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

916 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 the Bank targets local governments, imbuing them with a new meaning. In regimes where localities exist as mere administrative subdivisions of their states, the Bank aims to strengthen them, delegate authority to them, burden them with duties such as the provision of public services, and armor them with immunities vis-à- vis the state. According to these suggested reforms, where local governments are mere administrative conveniences, subject to the state’s sovereign will,138 they ought to gain fiscal independence and political autonomy, changing what it means to be a locality. In fact, though the Bank advocates decentralization, it actually sees itself as merely piggybacking decentralization processes that have already been taking place across the globe.139 Its main objective, therefore, is to direct decentralization in a specific way, one that will advance economic growth and fit within the Bank’s general ideology of efficiency, small government, and a reduction in state subsidies.140 The Bank’s most explicit goal is fiscal decentralization, the creation of a fiscal structure in which localities mostly fund themselves and provide public services based on their economic abilities. Such fiscal decentralization is closely linked with political decentralization and expanded authorities so that a locality will be able to “tax and spend” as it wills, except for activities designated nationally where the central government can and should intervene. Such decentralization comes with a diminished role of the central state. Interestingly, the Bank’s objective to assist localities to become independent of their states and to be able to access the global capital market has another side to it, assisting states to become independent of their localities, and to be able to gradually stop supporting them financially. “[C]reative and flexible forms of Bank Group support will be especially important where central governments, often wisely, do not wish to continue providing sovereign guarantees to subnational governments after

138. As I mentioned earlier on, various national legal regimes vary significantly in this respect, but in many countries, cities’ charters can be revoked by a regular legislative act and so can their powers and authorities. 139. “The confluence of four worldwide trends makes reconsidering the Bank’s urban strategy both timely and urgent: urbanization, decentralization, globalization, and government renewal.” CITIES IN TRANSITION, supra note 69, at 32. 140. For the World Bank, decentralization is a measure taken by governments throughout the world “in an effort to make [it] more responsive to citizens and to increase its efficiency.” Id. at 34. But even more importantly, it is a mark of liberal capitalism, a healthy antidote to the centralist tendencies of socialist regimes: “[I]n the Europe and Central Asia region, for example, local governments were effectively stripped of any significant role during the socialist era.” Id. at 111. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 917 decentralization.”141 These are profound structural reforms and they are closely linked with the reconfiguration of the concept of locality itself. Though the local government remains a public corporation in the visions of the World Bank, it is pushed in the direction of becoming more private. Indeed, the World Bank’s ideal city, and ideal locality in general, should have these four features: livability, competitiveness, good government, and bankability.142 Thus, the logic of a self-funding closed market, of efficiency and privatization of various public services is prevalent in the Bank’s rhetoric and policies. Localities are encouraged to engage in public-private partnerships. In other words, in the historical debate concerning the nature of localities, the Bank takes the position of approximating localities to private corporations. In this respect, it fits within the new governance system that sees private actors, as well as private law as vehicles for advancing the Bank’s political and economic policies.143 The World Bank advances its policies through voluntary agreements in which localities agree to make structural reforms in return for loans and financial assistance. Even though these agreements do not count as international law, they are a crucial element in what contemporary scholarship sees as the new transnational legal order. Currently, the World Bank is involved in contractual relationships with hundreds of localities throughout the world.144 The Bank’s “Urban Development” project is central to the Bank’s activities and it has gained the cooperation of UN-Habitat.145

141. Id. at 12. 142. Id. at 48–56. 143. For a fascinating analysis of the way transnational institutions and international law use private actors and private law in the new global governance project, see generally Dan Danielsen, Symposium: Comparative Visions of Global Public Order (Part I): How Corporations Govern: Taking Corporate Power Seriously in Transnational Regulation and Governance, 46 HARV. INT’L L.J. 411 (2005); Robert Wai, Symposium: Comparative Visions of Global Public Order (Part I): Transnational Private Law and Private Ordering in a Contested Global Society, 46 HARV. INT’L L.J. 471 (2005); Wai, supra note 97. 144. The locations of these localities are all over the developing world, in Asia, Eastern Europe, former Soviet Russia, Africa, the Middle East, and more. See CITIES IN TRANSITION, supra note 69, at 111–12, 118. 145. The “Cities Alliance” initiative is a Habitat program aimed at advancing the Bank’s strategic plan for cities, and it aims to mobilize $25 million in the coming three years to support city development programs and various other projects in accordance with the Bank’s urban policy. See The World Bank, World Bank Urban and Local Government Strategy, available at http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/ EXTURBANDEVELOPMENT/0,,contentMDK:20158153~menuPK:1358771~pagePK:148 956~piPK:216618~theSitePK:337178,00.html (last visited Apr. 11, 2006). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

918 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875

These contracts implement the decentralizing-localist ideology of the Bank and de facto reconfigure local governments, states, and the relationship between them. They also strengthen the involvement of global actors in the previously two-partite relations. Much like in the case of the UN’s Habitat Agenda and World Charter Draft, what marks the Bank’s contemporary human settlements project as part of the current global turn to localism is the unique combination of two different sets of ideological commitments, both pointing to the direction of decentralization. On the one hand, localities are seen as vehicles to advance neo-liberal ideology with its emphasis on privatization, efficiency, public-private partnerships, and economic soundness. On the other hand, localities are seen as the authentic manifestation of pre-existing human communities, hence the emphasis on grassroots mobilization, democratic participation, and bottom-top initiatives. These ideological commitments that could be described as theoretically contradictory, come together almost seamlessly in the new international localism, and rhetorically, are an extremely powerful justification for its regulatory ideal as they offer the best model of a locality: democratic and efficient, public and private, participatory and well-managed, egalitarian and competitive, bottom-up as well as top-down, national yet internationalized. But when applied, it is unclear whether some of the tensions that the new urban governance project seeks to transcend can be avoided. As with any formal legal change, it can lead to unexpected and sometimes undesirable results. Growing inequality among localities, exacerbated difficulties with cooperation, social fragmentation, and urban sprawl are such unintended consequences that are often associated with some forms of decentralization and localist ideology. In Israel, for example, a process of accelerated fiscal decentralization took place since the 1980s.146 This process has led localities to compete with each other fiercely, and to adopt measures that were highly destructive: inefficient land use, an aggressive “race to the ratable,”147 localities fighting over foreign direct investment (FDI) and plants by lowering labor standards and reducing tax rates to the detriment of their residents,148 externalities and growing inequality among localities.149

146. Though the process in Israel was not a direct outcome of World Bank policies, it is a similar ideological commitment that guided the structural reform. 147. Whereby localities guided their land use policies and strategic behavior vis-à-vis the state by a sole criterion—how much tax they will be able to collect. 148. See Jacqueline J. Ferber, The U.S. Foreign Direct Investment Policy: A Quest for Uniformity, 76 MARQ. L. REV. 805 (1993). 149. See Blank, supra note 72, at 92–119; see also ISSACHAR ROSEN-ZVI, TAKING SPACE BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 919

Benvenisti’s study of transboundary cooperation also demonstrates the problems that stem from fragmentation and decentralization, albeit in the specific context of natural resources’ management. Indeed, Benvenisti labels the World Bank’s “a philosophy of disengagement.” A philosophy aimed at limiting common ownership to the lowest possible minimum, and viewing international law as a rule system that could minimize the friction among states and resolve disputes by way of adjudication and rigid contractual obligations.150 This disengagement philosophy fails to address problems that arise out of situations in which disengagement is impossible for various reasons, such as geography. It also lacks in that it induces competition even where cooperation is needed for various reasons, such as avoiding market failures and protecting minorities. In its current urban advancement project the Bank seems to be aware of such risks and it explains that its strategies in helping localities become more competitive “must avoid misguided efforts to simply attract investment from other locations with tax or public investment incentives (a race to the bottom).”151 But a “race to the bottom” is precisely what had happened in many areas where decentralization, especially fiscal was not accompanied by a strong web of central forces that facilitated cooperation and prevented localities from using their authorities in a rent seeking and self- serving manner. Hence, it is unclear whether there are enough institutions and legal instruments that could mitigate the problems that seem endogenous to radical decentralization, especially when accompanied with the shrinking of states’ sovereignty.

3. Regional Experiences: Europe and NAFTA

Regional agreements and treaties form a large and growing body of international law. European countries have been reshaping the legal status of cities in a post-national setting. It should be noted that what has developed is an intricate legal system dealing with the authorities and duties of local governments that are subject to a national legal system as well as to an international legal system, be it the Convention for the Protection of Human Rights and Fundamental Freedoms or the founding documents of the EU. The European

SERIOUSLY: LAW, SPACE AND SOCIETY IN CONTEMPORARY ISRAEL (2004). 150. He opposes the philosophy of disengagement” to “the philosophy of integration,” and claims that the evolution of the relevant norms in international law can be traced to the clash between these two approaches. See BENVENISTI, supra note 92, at 156–58. 151. CITIES IN TRANSITION, supra note 69, at 49 (internal quotations omitted). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

920 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875

Court of Justice (ECJ) and the European Court of Human Rights (ECHR) thus regulate, via adjudication, localities and their relationships with their states, while a third party was involved: the legislative and administrative bodies of the EU and the ECHR. The sole sovereignty of European states was infringed when European courts decided on matters pertaining to the division of powers between localities and states and set the degree of autonomy given to cities by their states according to international documents— EU documents and the Convention—rather than by referring to the domestic legal system alone.152 The emerging European jurisprudence of local government law has contributed to the evolution of a set of legal standards regulating not only state-locality relationships but also how a locality should look like as a matter of its optimal size. In the case of Uradni list Republike Slovenije, the Slovenian Supreme Court held that the Slovenian constitution prohibits local units from exceeding the size necessary for the normal functioning of local government.153 However, the Slovenian Constitution actually had no specific provision referring to the appropriate size of localities, and the Court reached its conclusion based on what it called “‘the European concept of local government’ as the appropriate standard of review.”154 This case demonstrates the fact that global governance projects increasingly develop a comprehensive view of localities, which they previously lacked. Matters that were once the business of urban planners, political theorists, and economists as regards the physical planning of a locality, its optimal size and its economic structure are currently embraced by global policymakers, who are advancing their policies by using global legal institutions. The importance given to localities in the new global order renders every

152. As I suggested earlier, the Draft Constitution includes articles that further weaken states and give more power and autonomy to cities (and regions). This is a tradition that could go back to The European Charter of Local Self-Government of 1985 (the Strasburg declaration), one of the most important milestones of the emergence of cities in European law. It has been a source of inspiration for the drafters of the draft of the World Charter and has influenced the evolution of the status of localities in Europe. In this Charter, most contemporary principles of localism have been iterated: democratization, decentralization, and subsidiarity. The Charter impacted the way the U.N. and other transnational networks of cities think about local power and the relationship between cities and states. 153. Odlocba st. U-I-90/94, Uradni list Republike Slovenije, st. 29/94 (Slovn.), available at http://www.sigov.si/us/eus-decs.html (English translation). For a description of the case, see Bojan Bugaric, Courts as Policy-Makers: Lessons from Transition, 42 HARV. INT’L L.J. 247, 268–69 (2001). 154. Bugaric, supra note 153, at 268; see also SLOVENIA CONST. arts. 9, 138–44. Although the Slovenian Constitution provides for powerful and autonomous self-governing localities, it does not specify any limitations on their sizes. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 921 aspect of the locality a matter for global regulation, including the proper size of a locality, the taxation schemes it is allowed to plan, and desired relations with the state. What European localities have been experiencing in the past few decades, the member states of NAFTA are now beginning to notice. A regional agreement with no clear agenda or vision as regards localities can impact them in the most unexpected manner, and its ramifications can be quite far reaching. Though NAFTA has no specific requirements regarding the desirable legal and political structure of localities, nor does it specify what the relations between the central state organs and localities ought to be, it actually also has the potential to impact the United States’ and other states’ local government law. As Frug and Barron show, once the world, in this case a transnational NAFTA legal regime and its institutions, begins to regulate and adjudicate various disputes that involve localities, they become objects for international regulation, and their relationship with their states has a good chance to be scrutinized and transformed by these international entities.155 Indeed, another outcome of international involvement in state-local government relations is possible. Where these relationships are not well defined, where they are a matter of political contestation and judicial discretion, international law has the potential to rigidify them. For instance, NAFTA’s decentralization scheme seems to impose a method of legal organization, calling for a “clear and transparent” division of powers rather than one decided on a case-by-case basis through an ongoing dialogue between courts and legislatures.156 Especially in the context of trade and commerce, where determinacy and calculability are superior values, legal systems who do not conform and that choose to maintain some ambiguity in the exact division of power between tiers of government, might find themselves exposed to international edicts to

155. See Frug & Barron, supra note 1. See their analysis of the case of The United Mexican States v. Metalclad Corp., BCSC 664 (2001), where the Supreme Court of British Columbia (partly) upheld a decision of a NAFTA tribunal to award Metalclad (a U.S. corporation) compensation for losses it suffered due to the refusal of a Mexican local authority to let it operate a hazardous waste facility within its jurisdiction. One of the findings of the NAFTA tribunal was that Mexico violated its obligations under NAFTA since it did not establish a clear and transparent legal system in which investors would know what legal authorities the localities possess. This ambiguity, ruled the tribunal, caused Metalclad (through its subsidiary) to err with respect to a property deal it made and exposed it to expropriation. See also the discussion of this case in Vicki Been & Joel C. Beauvais, The Global Fifth Amendment? NAFTA’s Investment Protections and the Misguided Quest for an International “Regulatory Takings” Doctrine, 78 N.Y.U. L. REV. 30 (2003). 156. For a thorough description of this kind of transnational imposition of rigid legal frameworks, see generally Frug & Barron, supra note 1. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

922 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 establish specific division of powers between the state and localities. Where the exact boundary between central power and local autonomy was a matter of internal political contestation and dialectical relations within the state, the world has become involved as a third party.

C. Localities Becoming Enforcers of International Norms and Standards

Another crucial aspect of the emergence of localities as central actors on the global stage is their participation in enforcing international legal standards. Until recently, it seemed that this role had been imposed on localities from above, by central governments, central legislatures, and courts.157 However, in recent years localities are no longer mere state agents that simply implement their state’s international obligations. In this section, I analyze the bottom-up dimension of local enforcement of international law, whereby localities initiate such enforcement.

1. Adoption of International Norms by Localities

One of the most lucid manifestations of the internalization of international norms and of global legal ideas in localities is the activity that has taken place in numerous jurisdictions throughout the world to locally, rather than nationally enforce international human rights norms. Such activities occurred in many localities in the United States and elsewhere; some were more successful and some less. For the purposes of this Article, I am less interested in the justification for the internalization process that supposedly stems, according to the “transnational norm entrepreneurs” literature,158

157. The famous work done by Harold Koh in this field is of great importance for understanding the various modes of internalization that national systems adopt. Koh identifies three types of internalization: social, political, and legal. Legal internalization, he further argues, “occurs when an international norm is incorporated into the domestic legal system and becomes domestic law through executive action, legislative action, judicial interpretation or some combination of the three.” Harold Hongju Koh, The 1998 Frankel Lecture: Bringing International Law Home, 35 HOUSTON L. REV. 623, 641–43 (1998); see also Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599, 2656–57 (1997). 158. The term “transnational law entrepreneurs” was coined by Koh in order to bring to the fore the important role that various actors—transnational norm entrepreneurs—play in the process of international law internalization. See Koh, Bringing International Law Home, supra note 157, at 647. The concept of norm entrepreneurs in general was first used by Sunstein. See Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903 BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 923 from the fact that it is achieved by popular involvement and a continued dialogue between groups, individuals, and different levels of government. Rather, I am interested in how local internalization takes place since it demonstrates another way legal globalization actually happens. In other words, I want to stress the importance of the process by which international norms become local—the localization of the international. Such process-oriented analysis,159 gives more attention to various actors that interpret, implement, transform, expand, adjudicate, and enforce international and transnational norms in domestic settings. Indeed, the legal globalization of local governments is achieved not only through top-down global edicts by which international institutions superimpose their ideas and norms upon submissive (or resisting) localities; rather, it is a complicated process in which the enthusiastic embrace of international norms by local agents plays a crucial role. And it is crucial to realize that the globalization of ideas—the dissemination of global images, principles, and ideas into locations throughout the world—should also be understood as a process of importation of global ideas by local groups, individuals, and governmental agencies or by national groups that are interested in submitting localities to international norms or institutions.160 Such importations thus involve local entities that can be as eager to receive, as the global elements are to export. Some scholars that dealt with the issue of local internalization of international law focused their attention on the internal debates within states as regards the interference of localities in their states’ foreign policy, and with the perennial dilemma of demarcating the

(1996). For an explicit focus on local entrepreneurs, see Powell, supra note 25, at 51–56; Catherine Powell, Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States, 150 U. PENN. L. REV. 245 (2001). 159. See generally Koh, supra note 11. 160. The issue of importation of legal norms and their internalization into other systems has not only been dealt with in the context of international norms, but also generally in the “legal transplants” literature, with respect to jurisprudence, private law, criminal law, and so on. Usually, the literature deals with different modes of “importation” of legal rules and legal institutions from one jurisdiction to another. Often, the focus is on individuals who traveled from one country to the other and have been personally influenced by a legal system (or an idea) and tried to import it to other countries. See the seminal work in this line of theorizing by ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW (2d ed. 1993). Duncan Kennedy has recently developed a theory regarding the “globalization” of modes of jurisprudence and legal theorizing. See Duncan Kennedy, Two Globalizations of Law & Legal Thought: 1850–1968, 36 SUFFOLK U. L. REV. 631 (2003). For another recent sophisticated analysis of legal transplants, see Maximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 HARV. INT’L L.J. 1 (2003). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

924 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 boundary between the power of the state to control its foreign affairs and the autonomy of local governments.161 Others, however, have emphasized the international legal aspects of such state and local measures, since it casts a serious doubt on the cliché that federal regimes are a “black box” as regards foreign affairs and that federal states speak in one voice when dealing with other countries.162 Following this path, I wish to highlight the fact that this debate is no longer just the business of federal regimes but also of unitary states. Localities now appear as more than passive and obedient state agents that comply with norms that have been superimposed upon them by their all-powerful and sovereign states. Localities have become autonomous enforcers of international norms. International human rights law was the first area to become a major target for such local enforcement efforts. Maybe because it reached the U.S. Supreme Court and was declared unconstitutional,163 the case of economic sanctions imposed by local governments on companies that traded with Burma is probably the most dominant example of a local adoption of international human rights laws. During the 1990s, over twenty local governments and states have adopted laws and directives that targeted Burma by prohibiting state entities to do business with companies that trade with it.164 Sarah Cleveland, Howard Fenton, and others show that local enforcement of human rights norms have been taking place for quite a while with respect to Northern Ireland,165 apartheid South

161. See Sarah H. Cleveland, Norm Internalization and U.S. Economic Sanctions, 26 YALE J. INT’L L. 1 (2001); Sarah H. Cleveland, Symposium: Crosby and the “One-Voice” Myth in U.S. Foreign Relations, 46 VILL. L. REV. 975 (2001). 162. See Peter L. Fitzgerald, Massachusetts, Burma and the World Trade Organization: A Commentary on Blacklisting, Federalism and Internet Advocacy in the Global Trading Era, 34 CORNELL INT’L L.J. 1 (2001); Robert J. Delahunty, Federalism Beyond the Water’s Edge: State Procurement Sanctions and Foreign Affairs, 37 STAN. J. INT’L L. 1 (2001); Spiro, supra note 25; Ernest A. Young, Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism, 77 N.Y.U.L. REV. 1612 (2002). 163. See Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000). This decision, in which the U.S. Supreme Court invalidated a Massachusetts government procurement act which prohibited state entities to do business with companies that had business ties with Burma, stirred lively academic discussion. See generally Cleveland, Symposium, supra note 161; Fitzgerald, supra note 162; Powell, supra note 25. Indeed, notwithstanding the fact that in Crosby the U.S. Supreme Court prohibited sub-federal units to act in matters pertaining to foreign affairs, cities can still adopt norms and standards that are in congruence with international law, as long as these norms do not conflict with specific preemptions and are within the boundaries of Home Rule. 164. See Cleveland, Symposium, supra note 161, at 996; Peter L. Fitzgerald, Pierre Goes Online: Blacklisting and Secondary Boycotts in U.S. Trade Policy, 31 VAND. J. TRANSNAT’L L. 1 (1998). 165. See Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restriction, 13 NW. J. INT’L L. & BUS. 563, 567–69 (1993). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 925

Africa,166 Indonesia, Nigeria, and Cuba.167 And nowadays U.S. localities are adopting laws in compliance with international human rights norms that protect workers such as living wage municipal bylaws and campaigns,168 preserve the environment, and protect various minority groups such as migrant workers169 and gays and lesbians.170 New York City’s and San Francisco’s Administrative Codes and City Charters provide comprehensive examples of the way in which localities can sometimes incorporate into their independent norms various antidiscrimination provisions that surpass national standards, reflecting internationally-influenced sensitivities.171 Examples of such local adoption and enforcement of international norms and standards are hard to pinpoint since in many cases the international influence is not made explicit by the agents who initiated it. On the contrary, it is often denied. Indeed, even if

166. See Richard Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT’L L. 821 (1989). 167. See Cleveland, Symposium, supra note 161, at 997–99. 168. Across the United States, living wage campaigns have spurred in the past decade. Roughly speaking, there are two main living wage measures: The first compels the locality to pay its employees a living wage rather than minimum wage; the second, and the much more radical, mandates all employers within the local jurisdiction to pay living wage. While the first measure has swept the United States and now includes more than a hundred localities across the country (cities that have adopted living wage requirements include St. Louis, Boston, Los Angeles, Tucson, San Jose, Portland, Detroit, New York, Oakland, and many more), the second has passed in only three cities. Living wage ordinances have been passed in San Francisco, Santa Fe, and Madison. See Daniel B. Wood, “Living Wage” Laws Gain Momentum Across US, CHRISTIAN SCI. MONITOR, Mar. 15, 2002, at 1. 169. The city of Tel-Aviv’s treatment of illegal guest workers is a case in point. In the late 1990s, while the central government declared a “war” on illegal foreign workers and presented measures aimed at pressuring them to “willfully” leave the state, Tel-Aviv’s municipality formed a special agency (called “Messilla”) to take care of illegal workers’ problems, regardless of their status. It directly confronted the central government, establishing its image as progressive and independent. Indeed, the city declared its policy regarding the foreign workers as one which is motivated by the fact that “all human beings are entitled with universal rights,” hinting to international humanitarian norms. See Messilah (The Center for Information and Assistance to the Foreign (Workers) Community), A Chaning Reality: The Magnitude of the Phenomenon of Immigrant Workers in Israel and in Tel-Aviv-Jaffa, available at http://www.biu.ac.il/SOC/sw/downloads/Ilan_141204.ppt. 170. Localities were among the first to grant same sex partners the same rights of different sex couples. In addition, the debate concerning the City of San Francisco’s mayor to marry gay and lesbian couples can serve as an example to an executive action that internalizes international law. Though no explicit international norm exists that mandates such marriages be allowed, the evolution of gay rights and of the institutions of gay marriages in European countries might have had an important role in cities’ initiatives to sanction gay marriage. See Lockyer v. City and County of San Francisco, 33 Cal. 4th 1055 (2004). 171. N.Y. City Admin. Code tit. 8; City of San Francisco Admin. Code ch. 12. Chapters 12J, 12F and 12K are most explicitly internationally oriented since they deal with foreign commerce with Ireland and Burma, and adopt the provisions of CEDAW, respectively. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

926 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 local officials, legislatures, or activists want to adopt an international standard and avoid nationalist or parochial resistance, it would be wise of them to play down the fact that it is in fact an international norm that they are trying to internalize.

2. Where States Fail, Local Governments Might Succeed

The fact that states dislike being the enforcers of international norms is well known. It can be explained as pure egotism (“someone else will do the job”), narrow self-interest, or better yet as a classical problem of collective action. As Eyal Benvenisti shows, the global goodness conferred by the impact of international law, and especially of international human rights law can be viewed as a “public good.” Once this good is produced, those who endeavored to produce it cannot exclude others from enjoying it (the goods are non-exclusive), and the quality of the goods is not diminished by others who consume it (the goods are non-rivalrous).172 Thus, states that enjoy the progress and stability that is achieved worldwide—shirk and refuse to participate in the production of this good by enforcing it. States prefer to continue doing business with states that violate human rights and other international standards and let other states boycott the “rogue” state or who take other measures against it.173 This collective action problem might cause a general lack of enforcement of international norms, and create a serious problem for those who care about the efficacy of the international legal system. However, where states fail, localities might succeed. Locally initiated adoption of international norms is often easier to achieve due to various reasons. First, homogeneity of values and preferences of the citizenry is more common in localities than it is in states. Second, it is often easier to mobilize residents in localities in order to achieve such reforms than it is to mobilize citizens nationwide. Third, local governments often allow for better participation and involvement of the public in government and thus enhance political

172. For an application of the concept and literature of public goods on international law and specifically on the issue of the enforcement of international law as well as an analysis of the Bush Doctrine and the difficulty of achieving global security when free riders can get security without participating in its production, see Eyal Benvenisti, The U.S. and the Use of Force: Double-Edged Hegemony and the Management of Global Emergencies, 15 EUR. J. INT’L L. 677, 681–84 (2004). 173. Clearly, I am presenting a radical perspective here, intentionally ignoring many other, more justifiable, reasons not to enforce human rights law: that the goodness that it brings is unevenly distributed and places unequal burden on different states; that many states are actually excluded from it; that there are good reasons not to boycott any state (for humanitarian reasons as well as for pragmatic reasons). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 927 passion and care for politics.174 Fourth, patriotism and nationalism are perhaps of lesser importance in localities and international influence is less threatening than it is for national entities. Lastly, adoption of international norms by a locality can serve as a means of demonstrating its independence, autonomy, and progressiveness vis- à-vis the state and other “backward” localities. Internationalization is often seen as a hallmark of progress and localities that want to adopt an image of a global city might wish to internalize international norms. Thus, the famous reluctance of national legislatures, governmental agencies, and courts to internalize international norms by directly adopting them175 might be weaker in some localities.176

3. The Globalization of International Law

Internalization of global norms and standards demonstrates a phenomenon related to globalization that manifests itself particularly in localities and is called “glocalization.” This phenomenon is the local appearance of global forces resulting in a unique hybrid arising from the local interpretation, adaptation, or translation of global

174. See Roderick M. Hills, Jr., Corruption and Federalism: (When) Do Federal Criminal Prosecutions Improve Non-Federal Democracy?, 6 THEORETICAL INQUIRIES L. 113 (2005); cf., Yishai Blank, The Resilience of Participation: A Comment on Prof. Hills 6 THEORETICAL INQUIRES L. 155 (2005); see also discussion infra Part V.A. 175. This reluctance, perhaps obvious to some, occurs for various reasons, some of which are lack of sufficient knowledge and expertise in international law, language barriers, fear of delegitimation of the judiciary for what might be seen as its infidelity to national institutions, and perhaps old-fashioned nationalism. See Eyal Benvenisti, Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts, 4 EUR. J. INT’L L. 159 (1993); Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225 (1999). For further discussion and critiques of the hostility of American courts (and especially of the Rehnquist Court) to international law in Constitutional interpretation, see Claire L’Heureux-Dube, The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court, 34 TULSA L.J. 15 (1998); Gerald L. Neuman, The United States Constitution and International Law: The Uses of International Law in Constitutional Interpretation, 98 AM. J. INT’L. 82 (2004); Powell, supra note 25, at 51; Koh, Why Do Nations Obey International Law?, supra note 157. Specifically to local government law, the U.S. Supreme Court refused to interpret the Constitution in a way that would give any significance to the fact that in other jurisdictions it was found that it was efficient to let the national government implement its policy through local governments. The majority opinion rejected Justice Breyer’s attempt to use comparative local government law. See Printz v. United States, 521 U.S. 878 (1997); see also, Tushnet, supra, at 1232–33 (discussing the Printz decision). 176. The downside is, of course, that localities that want to demonstrate their fidelity to national values and their resistance to globalization might refuse to “surrender” to various global impositions even when their state accepts such edicts. The refusal of the Spanish mayor to marry gays and lesbians might be one such example, even though the initiative to marry same-sex couples was of the Spanish government and not the EU’s. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

928 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 influences. An example of glocalization is the way global chain- stores adapt themselves to local tastes and preferences.177 Another example is the way localities interpret global imperatives and development schemes and implement them according to their own unique local culture. In law, such glocalization takes place when national courts adapt international norms and global standards to local legal “tastes” and local legal culture. It also happens when local actors, NGOs, activists, private individuals, and associations try to use international and transnational norms and standards to achieve various goals, or promote their internal agenda. It is worth noting, that no less important than the substance of the internalized norms are the processes that accompany it. Indeed, local governments can decide to transform their own legal systems so that they will comply with international norms even without the initial support of central state organs. However, sooner or later national consent to this local adoption will have to be granted, implicitly or explicitly, by act or omission. Given the current structure of international law, as long as localities cannot secede and become fully independent, states are formally able to control the latter’s conduct. Therefore, it means that local governments that may try to overreach their powers and leapfrog over the central state directly to the world might encounter some problems from the state that will preempt, curb, and use its internal power to weaken the rebelling city. Yet, formal legal powers and the formal degree of decentralization do not necessarily reflect the reality of decentralization. As many researchers have shown, the actual relationship between central control and local power is determined by social and economic factors such as fiscal independence of the locality, its political power within the state, and social networks and capital that the locality possesses.178 Rich and powerful localities can afford to instigate conflicts with the central government and enjoy silent affirmation by central agents, even in cases where the latter is displeased with their policy. In fact, as I suggested before, strong localities might even desire such conflicts as a form of signaling the central government and other localities about their strength. Therefore what we might observe in the near future will be

177. Such is the commercial strategy of McDonald’s to adapt its design and several dishes to local taste and sensitivities. 178. See generally FRUG, CITY MAKING, supra note 57; Barron, A Localist Critique, supra note 57; Barron, Reclaiming Home Rule, supra note 57; GERALD E. FRUG, DAVID J. BARRON & RICK T. SU, DISPELLING THE MYTH OF HOME RULE: THE STATE OF HOME RULE IN THE BOSTON METROPOLITAN REGION (2003); Blank, supra note 72. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 929 a growing divergence among cities with respect to the level of their “globalization” not only in the sense that Sassen and other have discussed—flow of global capital, goods, and workers—but also in how internationalized their municipal legal system has become. An opposite phenomenon can also take place. Indeed, if local governments become more autonomous, they can also declare their independence, both vis-à-vis the state and vis-à-vis the world, by resisting international law. Future domestic legal conflicts may arise if localities begin to oppose such impositions of international norms by claiming autonomy vis-à-vis the state and a wider “margin of appreciation” as regards the question of the applicability of international norms to their actions. If we are to take seriously the idea of granting localities autonomy vis-à-vis their state, an argument of non-applicability of conventional or customary international law can arise in the future. And the more localities throughout the world are seen as private entities, or legally become private by adopting the U.S. model of homeowner associations and the privatized notion of decentralization, the more such a “corporate veil” can protect them from the applicability of international law. For the time being, one would expect the rejection of such claims made by localities, due to the fact that accepting it would amount to granting the local government an effective right to secede.179 However, I think it is not unlikely that such legal developments will be seen in the near future. The emergence of localities as bearers of international duties and rights threatens the fragile balance between local governments and central states. If localities become de facto subjects of international norms and are involved in IOs, and if they acquire more and more autonomy vis-à- vis the state, perhaps the status of the “no secession rule” gradually changes, if not de jure than at least de facto. In turn, such new

179. Post WWII international law rarely affirms the right of a territorial sub-national entity to achieve autonomy vis-à-vis the state under whose jurisdiction it exists, its right to secede (and form an independent state), or its independent existence in international law. Undoubtedly, this reluctance is, at least in part, a result of the trauma that the splinters and semi-states that were erected during the interwar period caused to the international legal imagination. This general reluctance has had numerous exceptions with varying degrees of autonomy granted to the regions, such as the South Tyrol, the Basque country, Puerto Rico, Southern Sudan, and Eritrea. See generally MODELS OF AUTONOMY, supra note 56. The fact that secession is so difficult to achieve and that, generally speaking, sub-central units in federal regimes do not obtain any status in international law or any standing in international institutions is crucial in order to understand the dependency of cities in matters of international (or “foreign”) relations. It has dictated general submission of cities to states as far as relationships with the world were concerned. It also limited the ability of cities to engage in direct conflict with their states, since the “ultimate” weapon of secession was unavailable to them, even if they were economically powerful. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

930 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 developments might threaten the new trinity, since it might point to a new direction in which the distinction between localities and states would be obliterated. Such a world would be comprised of city- states only.

D. Local Governments Becoming Political Actors on the World Political Stage

The processes that I described have been entwined with the emergence of local governments as political actors on the world political stage. The regulation and imposition of international duties on localities are thus accompanied by a growing representation of localities in international entities and by the creation of various associations whose primary goal is to facilitate cooperation among local governments in the face of the challenge posed to them by the new global regime. A plethora of institutions, associations, networks, and ad hoc activities that comprise localities and that are aimed at turning them into principal global actors have appeared throughout the world in recent years. Some of the associations are global and some are regional, but they all see themselves responding to the growing importance of localities and to the emerging understanding that local governments are among the basic political building blocks of the new global order. Such organizations, associations, and ad-hoc entities include: The World Organization of United Cities and Local Governments (UCLG);180 WACLAC;181 International Union of Local Authorities (IULA);182 Mayors’ Organizations;183 World Federation of United Cities (WFUC); World Urban Forum;184 The

180. UCLG is probably the biggest umbrella association of local governments in the world. It has members in one hundred and twenty-seven countries, in seven world regions (thirty-six countries in Africa, sixteen in Asia-Pacific, eleven in Euro-Asia, thirty-four in Europe, eight in the Middle East and West Asia, seventeen in Latin America, and five in North America). Over a thousand cities worldwide are direct members in UCLG. See United Cities and Local Government (UCLG), http://www.cities-localgovernments.org/uclg (last visited Mar. 30, 2006). 181. See supra note 109. 182. Established in 1913, the IULA is the oldest cities’ organization. 183. Two major mayor organizations are: World Mayor and City Mayors. 184. The World Urban Forum gathered in Barcelona on September 2004 as an initiative of U.N.-Habitat, following the Commission’s decision “to promote a merger of the Urban Environment Forum and the International Forum on Urban Poverty into a new urban forum, with a view to strengthening the coordination of international support to the implementation of the Habitat Agenda.” The World Urban Forum, according to the U.N. General Assembly Resolution 56/206, is a “non-legislative technical forum in which experts can exchange views in the years when the Governing Council of the United Nations Human Settlements BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 931

International Council for Local Environmental Initiatives (ICLEI); Global Metro City; and the Glocal Forum.185 The meaning of the burgeoning global associations of localities is threefold. First, it denotes a growing awareness of localities to their importance. Second, it implies a current deficit in localities’ effective participation in global governance projects, a deficit that induces local governments to cooperate in order to obtain a higher degree of influence. Finally, it marks a break from the competitive order of the nation-states, as localities from all over the world manage to cooperate. The rise in power of localities brings with it institutional changes whose impact we are only beginning to witness and understand. These transnational local networks demonstrate that globalization indeed works hand in hand with localization: As states share their power with localities, the latter group aims to increase its powers further and become full partners in the global order. And while traditional international law is reluctant to acknowledge local governments as full subjects, they manage to utilize civil society mechanisms in order to better their position. This process, seemingly a grassroots movement of localities, is also being encouraged by international and global institutions such as the UN and the World Bank. The UN Advisory Committee of Local Authorities (UNACLA) was established in January 2000 in order to strengthen the dialogue between national governments and local governments on the implementation of the Habitat Agenda. The members in UNACLA are “leading local government representatives” from across the world. Its members are selected by the UN-Habitat Executive Director, and they are supposed to be “geographically balanced.”186 An important “partner” of UNACLA is the UCLG, a voluntary association that now begins to exert more official power in the international sphere of politics. In Europe, too, such rise in the formal political importance of localities can be observed. A clear signal of the growing power given to representative bodies of localities is the suggestion to grant the Committee of the Regions187 locus standi in the ECJ if the

Programme does not meet.” See World Urban Forum, Dialogues, Barcelona 2004 http://www.barcelona2004.org/eng/banco_del_conocimiento/dialogos/ficha.cfm?IdEvento= 181 (last visited Mar. 30, 2006). 185. The Glocal Forum, http://www.glocalforum.org (last visited Mar. 30, 2006). 186. UCLG, supra note 180. 187. The Committee of the Regions is an official organ of the EU, defined in Part I, Title IV, Chapter II, Article I-32 of the Draft of the European Constitution: “The Committee of the Regions shall consist of representatives of regional and local bodies who either hold a regional or local authority electoral mandate or are politically accountable to an elected assembly.” Treaty Establishing a Constitution for Europe pt. I, tit. IV, ch. II, art. I-32, Oct. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

932 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875

Committee thinks that the principle of subsidiarity—that is, if decisions were not taken at the lowest possible level—was breached.188 This change represents the realization that localities are not only efficient sub-contractors for the state, or entities that possess valuable local knowledge or submissive subjects to centrally imposed policies; they are, rather, powerful political agents with whom the central governments need to share their power. The Council of European Municipalities and Regions (CEMR) has also gained power and influence, and is required to express its views as regarding various issues that pertain to localities and decentralization. Together, these four modalities show that globalization is embedded not only in national territories, laws, and administrations, as Sassen argues,189 but in their local counterparts as well. Put differently, globalization takes place in territorial units far smaller than the national territory of the state at large, and in the process transforms the functioning and the meaning of the very concept of local government. These geographical units, commonly called local governments, are defined not merely by economic or social factors but also by national and international laws and institutions. This Article shows that while the literature that deals with the role of localities in the global order treats them as social, economic, and spatial creatures, they are also legal creatures, whose legal character has a significant impact on the nature of globalization and on localities’ role in this new global order.

V. RECONSTRUCTING THE NEW TRINITY

In light of the role localities are beginning to play in the emerging global legal order, it is timely to ask: Is it good or bad? In other words, should the process in which local governments assume a growing degree of influence on global governance and an increased legal status in international law be encouraged or curbed? These are questions with no clear answers, and given the scope of this Article, I can only sketch some preliminary answers. One of the inherent problems of such an investigation is that the process that I described is itself decentralized. Globalized localities in the developed world are very different than globalized

29, 2004, O.J. (C310) 1. 188. See the 2nd Protocol on the Application of the Principles of Subsidiarity and Proportionality in the Draft of the European Constitution, supra note 122, art. 8. 189. See Saskia Sassen, The State and Globalization: Denationalized Participation, 25 MICH. J. INT’L L. 1141, 1141 (2004). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 933 localities in the developing world.190 Within developing countries, globalization also creates gaps among localities and its impact on different localities is radically disparate.191 And while some localities in developing countries have been impoverished by the process of globalization and the quality of life in them deteriorated, others have benefited immensely from it and for them globalization was a blessing. What marks globalization is the fact that it is only partly coordinated and orchestrated; most of the time the processes that are associated with it are dispersed, decentralized, initiated by many entities, and taking place at different paces in different locations. Globalization is denationalization in the sense that it creates splits within states, no longer privileging and disenfranchising whole states en banc. Its impacts are much more local and less national, and even if the state might lose out on the whole, various localities can benefit, and vice versa. As Sassen rightly noted, most traditional theories “remain focused on the logic of relations between states and the scale of the state at a time when we see a proliferation of non-state actors [and] cross-border processes . . . .”192 Indeed, this Article only contributes to the confusion by showing that the cacophony of globalization affects and comprises localities. I therefore look into a much narrow question: Is the legal globalization of local governments desirable, and, more specifically, what are the unique qualities of localities that place them—if at all— in an advantageous position when compared to other entities that serve as vehicles for shaping globalization such as NGOs, transnational corporations, and international institutions? What, then, makes local governments unique entities in the global sphere? What are the reasons that they became such important actors in the new global legal order? As I already made very clear, unlike the literature on global cities, it is not merely the cosmopolitan metropolis that I have in mind when I talk about the emerging importance of localities in the globalized world. Small localities such as villages, towns, and suburbs also feel the push and pull of globalization and they, too, are subject to the same norms of

190. Luiz Cesar de Queiroz Ribeiro & Edward E. Telles, Rio de Janeiro: Emerging Dualization in a Historically Unequal City, in GLOBALIZING CITIES, supra note 12, at 78. 191. In Cities in the International Marketplace, the writers show how radically different the impact of globalization can be on cities in Europe and the United States. See generally SAVITCH & KANTOR, supra note 12; see also Blair Badcock, The Imprint of the Post-Fordist Transition on Australian Cities, in GLOBALIZING CITIES, supra note 12, at 186 (discussing cities in Australia); Roger Keil & Klaus Ronneberger, The Globalization of Frankfurt am Main: Core, Periphery and Social Conflict, in GLOBALIZING CITIES, supra note 12, at 228 (noting social splits and inequalities created in Frankfurt). 192. See Sassen, supra note 106, at 1149. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

934 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 international law and treaties. Where global cities literature errs, I argue, is precisely on this point: Globalization takes place not only in the privileged location of the mega-cities, where global goods, images, and workers meet in a spectacular way, but also in suburbs and towns that are being subjected to the same international legal norms, transnational treaties, and World Bank lending conditions. And though the level of the impact might indeed vary from one place to the other, the normative legal background remains the same. Furthermore, since the state, emasculated as it might be, is still very much in place, we must to take into account the domestic legal regime in order to figure out the relative power of small towns vis-à- vis big cities and vis-à-vis the state. Indeed, suburbs and small towns, too, can be politically involved in global politics, as the case of local enforcement of human rights demonstrates, and they too can aspire to achieve the image of a global city. Sometimes they can do so by becoming global economic nodes, or, at other times, by turning themselves into enforcers in the human rights community. As Appadurai argues, one of the unique traits of globalization, and an importance source for its rapid success, is that it can also operate in the level of cultural images and identifications, and these are sometimes easy to change.193 This Article shows that sometimes legal changes can be a way in which localities can transport themselves onto the international plane and globalize themselves. As earlier mentioned, most justifications for the global decentralization project are based on the belief that it will promote efficiency and democracy. But is it really so? Even if we accept the assumption (which I discussed briefly earlier on) that economic theory is correct in predicting that delegating authorities to the lowest possible level (i.e., local governments) would improve public services and increase growth, some questions still remain: What are the other consequences of such global decentralization and is democracy served when we empower localities in the global sphere? Indeed, some of the negative consequences of decentralization are well known. It can cause inequality, negative externalities, collective action problems, and increased fragmentation.194 These problems, once transported onto the global

193. See generally Appadurai, supra note 13. 194. Many of these problems are dealt with by various scholars. Regionalism is understood to be one of the most important solutions to problems of coordination, externalities, and even human rights abuses. See, e.g., BENVENISTI, supra note 92; SAVITCH & KANTOR, supra note 12. The tensions between cities and regions have not yet emerged in international law. Since, for the time being, both are seen as weak and subsumed by the BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 935 sphere actually mean that splits within states might be created and that the more we decentralize, the more states are weakened. This can cause states to “panic” and attempt to fight the pressures to decentralize themselves, but it is unclear whether they currently have the power to do so. As I have described, the current trend in international and global institutions is clearly in the direction of decentralization. It is possible that globalization has gone so far that local elites have already become strong enough to overcome the national elites, or that local elites have reached the stage of understanding that they are better served by cooperating with local elites from other countries and with other elements of the global civil society such as NGOs, and transnational corporations. Other writers seem to implicitly assume that globalization happens everywhere nowadays and there is no room for the surprise that localities, too, are globalizing like other human associations, corporations, and communities. Others merely stress the fact that localities are already “out there,” dealing with the daily problems globalization creates and should therefore be better utilized. As the World Bank notes, localities are the “ground troops in responding to the imposing demands for jobs, infrastructure, finance, and effective governance.”195 Indeed, localities have been extremely resilient because they have managed to recompose themselves as nonstate actors and even went further to reconfigure themselves as private actors. Private entities have become part of the new global governance system, and under dominant ideology of global policy makers are preferred over governments and state agents that are often thought to be corrupt and inefficient.196 And local governments’ reconfiguration as private corporations is not that farfetched because they have always stepped on the thin line between being a private association and being a public one. Indeed, this reconfiguration of local governments into non-governments has been so successful that only recently, the “Report of the Panel of Eminent Persons on United Nations-Civil Society Relations” (the Cardoso Report), submitted to UN General Secretary Kofi Annan in 2004, treated them as “civil state and thus paired together vis-à-vis the state, the obvious opposition between them has not become a matter of international law. And since neither are fully recognized legal entities in international law doctrine, both are equally absent from the discussion of the new world order, with a few exceptions. However, as we clearly know from the national context, regions have emerged as important entities in various ways, and the more cities and regions become powerful political units, the more one can expect tensions and struggles between them. This is true also in the legal field. 195. CITIES IN TRANSITION, supra note 59, at 35. 196. See generally THE EMERGENCE OF PRIVATE AUTHORITY IN GLOBAL GOVERNANCE (Rodney Bruce Hall & Thomas J. Biersteker eds., 2002). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

936 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 society” elements.197 What I would mostly like to stress, however, is the unique dualism of localities—being state agents on the one hand, and voluntary human associations (often of defined communities) on the other hand—that distinguishes them from other entities that are, admittedly, also part of the new global order, and that might serve as a better basis for the normative justification of local governments as desirable agents for globalization. It is local governments’ singular political potential that can turn globalization from a top-down governance project into a radically democratic project. Localities throughout the globe have, by and large, maintained their basic democratic aspect, since in many of them some form of democratic elections are mandated by the law in order to choose local officials. Though in various places across the world there are attempts to limit popular participation (even in the form of elections) in local governments,198 and in some cases local governments are appointed by the central governments without any local democratic participation, it is still the case that in most places local democracy prevails, at least formally. The UN, the World Bank, the EU, and other global and international institutions support a further strengthening of this trend of popular participation in government. Proponents of local empowerment justify their position through the virtues of localism: economic efficiency and development, more direct and accountable democracy, and the unique ability of local governments to serves as normative mediators between communities and governments, and between local groups and national majorities. In particular, public choice theory has generated great distrust in central governments due to their susceptibility for capture by rent-seeking interest groups, and combined with the Tieboutian model of local expenditures, created a default rule in favor of delegation of power to local governments. In addition, scholars tried to show why democracy is also better served by strengthening local governments. First, the small scale of most

197. The Cardoso Report included two important proposals with respect to the status of local governments in the global governance project: According to Proposal 17, “[t]he General Assembly should debate a resolution affirming and respecting local autonomy as a universal principle”; Proposal 18 states that “[t]he United Nations should regard United Cities and Local Governments as an advisory body on governance matters.” Report of the Panel of Eminent Persons on United Nations—Civil Society Relations, We the peoples: Civil Society, the United Nations and Global Governance, U.N. Doc. A/58/817 (June 11, 2004). 198. President Putin’s current attempt to curb municipal power in Russia is an example of such a centralist effort. BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 937 localities allows people to exchange ideas and deliberate on a daily basis. Second, public officials cannot hide away from their constituents, hence they are reasonably more accountable and responsive to their constituent’s needs. Third, since popular involvement in politics is a function of how much they feel their involvement really matters, positive feedback increases participation. Fourth, the substance of local politics is often more intuitively understood by lay people and it is therefore easier to overcome voter apathy. Lastly, the relative homogeneity of the local populace makes it easier to reach consensus and allow people to deliberate even politically charged matters.199 But these justifications are somewhat anachronistic and inaccurate. The variance among localities is so enormous that looking at all of them as if they were all small towns ignores the reality of mega-cities, sometimes bigger in size and population than many countries. And it is overly optimistic in that it trusts formal democracy to naturally produce public deliberation and participation.200 As the experience in the United States suggests, making democracy work and inducing weak populations to participate in politics requires an active and positive effort on behalf of the ruling regime and a transformation of the political systems that exceeds the oft empty slogan “decentralization.”201 Indeed, power sharing is not a natural outcome of smallness, proximity, or technology. However, the material conditions that often exist in localities, including smallness, proximity, sharing the same physical and political space with fellow citizens, might be conducive to the fulfillment of the promise of the city.202 The city can serve as an ideal. Its unique legal structure, the inability and unwillingness to “solve” the ambivalences of localities as democratic yet bureaucratic, public yet private, state agents yet autonomous, is what enables these spatial conditions to facilitate their transformation into being, again, what stands at the forefront of human civilization. Even if big, pluralistic, and multicultural, they suggest a possibility to imagine a community in a more concrete and real way than the imagination of the national community (or, for that matter, the entirely abstract

199. For a comprehensive overview, see generally Hills, supra note 57. 200. See generally Blank, supra note 174. 201. See Edward L. Rubin, Getting Past Democracy, 149 U. PA. L. REV. 711 (2001); ARCHON FUNG, EMPOWERED PARTICIPATION: REINVENTING URBAN DEMOCRACY (2004). 202. For an idealistic view of the promise inherent to cities, see David J. Barron, The Promise of Cooley’s City: Traces of Local Constitutionalism, 147 U. PA. L. REV. 487 (1999). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

938 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [44:875 community of mankind).203 If every group is always somewhat imaginary, what singles out the city as a figure and the locality as the general legal concept that captures its essence is that it is still grounded in daily experiences, even if it clearly also imagined. On the other hand, unlike other “real” group or communitarian identifications, belonging to a city is usually not based on race, religion, gender, ethnicity, or other “immutable” or inherited traits. The locality is both a material place and a political-legal organization, and thus it enables people and communities to envision their place in a concrete way. The possibility to imagine a specific place and often very specific people as being members of the same political body is what renders the locality a promising possibility.204

VI. CONCLUSION

The rise of localism in international law is only beginning to impact localities and states throughout the world. Already, however, localities have begun to operate in at least three ways as normative- regulative agents. Local governments are vessels through which world ideas reach individuals and communities, they are instruments of democratic organization through which communities and various groups of individuals can appear and act on the world stage, and they are serving as material and political frameworks for envisioning space, as ideals for configuring the relationship between the world and a specific locale. Local governments are still important normative mediators between communities and the state in the national sphere; however, more and more they are also mediating conflicting demands and values in the international plane, between states and global actors. Indeed, states’ sovereignty, compromised as it may be, still plays a major role not only in international law but also in regulating the activities of globalized cities and other localities worldwide. Thus, the order that this Article sought to describe is not one in which the state is a ghostly entity, replaced by the world on one hand and by local governments on the other hand, but one in which all three parties are becoming entangled and equally important. Thus, the new trinity of the world-state-city currently characterizes the new

203. See generally BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM (1983). 204. I would like to distance myself from the notion developed by Iris Young that cities breed the ideal of “living together with strangers.” See generally IRIS M. YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE (1990). BLANK ARTICLE FINAL.DOC 5/9/2006 4:24 PM

2006] THE CITY AND THE WORLD 939 dynamics in international law and in domestic legal systems. The process of globalization that is unfolding in front of our eyes reflects a novel governance strategy that sees localities as vehicles for a global dissemination of contemporary ideas and political theories (democratization, multiculturalism, and efficiency). It is this unique intersection of ideology, political theory, and governance strategy that the current “turn to the local” in the global sphere is taking place. And the legal transformation that we are witnessing is a part of and a result of this turn, whose future lies ahead.