The City and the World
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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