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Chapter 12
Accelerating Cities, Constitutional
Brakes? Local Authorities Between
Global Challenges and Domestic Law
Barbara Oomen, Moritz Baumgärtel and Elif Durmu¸s
Contents
12.1 Introduction . . . . . . . . . . . . . . . . . . . . . .......................................... 250
12.2 ‘Accelerating Cities’ Using International Law to Address Global Challenges . . . . . . . . . 251
12.3 International Support Fuelling the Rise of Accelerating Cities . .................... 254
12.4 Accelerating Cities and ‘Constitutional Brakes’: Examples from Domestic Case
Law ...................................................................... 256
12.4.1 Germany: Early Rulings Limiting the Competencies of Local Authorities . . . . . 257
12.4.2 Spain: Local and Regional Actions Pre-empted by the Constitutional Court . . . . . 259
12.4.3 Turkey:LocalAuthoritiesLitigatingtheRighttoWater .................... 260
12.4.4 France: Communes Invoking International Law to Strengthen Social Justice
Locally ............................................................ 262
12.4.5 The Netherlands: Questions of Local Authority Reach the European Level . . . . . 264
12.5 Discussion: Researching Local Authorities Invoking International Law before Domestic
Courts .................................................................... 266
References ................................................................ ..... 269
Abstract Increasingly, local authorities around the world invoke international law
to tackle global challenges autonomously while distancing themselves from national
laws and policies, sometimes stimulated by international authorities. This chapter
addresses the relevance of national constitutional arrangements for the way in which
the resulting conflicts are, or are not, resolved. More specifically, how do domestic
courts respond to ‘accelerating cities’ invoking international law as they oppose
policies of the national government? Discussing cases from Germany, Turkey, France,
B. Oomen ·M. Baumgärtel (B)·E. Durmu¸s
Faculty of Law, Economics and Governance, Utrecht University, Utrecht, The Netherlands
e-mail: m.baumgartel@ucr.nl
B. Oomen
e-mail: b.m.oomen@uu.nl
E. Durmu¸s
e-mail: e.durmus@uu.nl
©t.m.c. asser press and the authors 2021
Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020,
European Yearbook of Constitutional Law 2,
https://doi.org/10.1007/978-94-6265-431-0_12
249
250 B. Oomen et al.
the Netherlands and Spain, we offer an initial exploration of how such cases have
the potential to challenge the constitutional order in federal and unitary states alike.
At the same time, ‘accelerating cities’ are confronted with ‘constitutional brakes’—
barriers in national constitutional and administrative rules. Our analysis suggests that
national courts may permit harmless symbolic acts, but step down, or even create
a ‘backlash’ in the case of more consequential actions. Given the potential in local
engagement with international law, and the rise of the phenomenon, it is urgent to set
up systematic and detailed investigations and comparisons of the dynamics of local
government law in different countries and how they are shaped by an invocation of
international law in general, and human rights law in particular.
Keywords Cities ·Health care ·International law ·Local authorities ·Multi-level
constitutionalism ·Undocumented migrants
12.1 Introduction
With cities emerging as important actors in addressing global challenges ranging
from climate change to migration,1some of their local authorities have begun to
invoke international law in order to distance themselves from national laws and poli-
cies. New York’s city plan to implement the Paris Agreement that the United States
withdrew from temporarily forms a case in point.2Predictably, such an invocation of
international law by local authorities may result in a conflict with national govern-
ments. As local authorities are not recognized within international and European law
as formal actors—and thus, for instance, lack standing with international monitoring
bodies and the European courts—the consequence has frequently been a deadlock
that has to be resolved nationally, for instance in the highest national courts.3
Against this background, this chapter explores the relevance of national constitu-
tional arrangements for the way in which such conflicts are, or are not, resolved. How
do domestic courts respond to ‘accelerating cities’ invoking international law in a
conflict with the national government? We propose the term ‘accelerating cities’ as
shorthand for a much wider range of local (and at times other subnational) authorities
and regions that are considered lower levels of government in a wide variety of consti-
tutional dispensations. What is at stake in such conflicts is substantial, as it concerns
local governments pushing the boundaries of their competences and seeking to take
a leading role by meeting internationally agreed standards and thereby addressing
the global challenges of our times such as migration, inequality and climate change.
In order to explore this rather uncharted territory of ‘international local govern-
ment law’, this chapter first sets out in detail what we understand to represent a rise
1See, amongst others, Acuto 2013, Barber 2013, and Blank 2006.
2See https://www1.nyc.gov/assets/sustainability/downloads/pdf/publications/1point5-AligningNYCw
ithParisAgrmt-02282018_web.pdf, last accessed 30 August 2020.
3On the ‘invisibility’ of local governments internationally, see Nicola 2012 and Oomen and Baumgärtel
2018a.
12 Accelerating Cities, Constitutional Brakes? Local Authorities Between … 251
of ‘accelerating cities’.4Next, it shortly describes the explicit attention and support
that a range of international institutions has recently given to both the responsibility
of local authorities to implement international law and their autonomy to do so.
Subsequently, we turn to the fundamental tension that arises when local authorities
(seek to) comply with the international legal obligations entered into by their national
governments, even if they cannot turn to international judicial institutions to resolve
the deadlock that arises. On the basis of a number of specific instances, we inquire
how constitutional set-ups and domestic legislation influence the degree to which
local authorities are able to follow an interpretation of international arrangements
that is different from the national stance. The basis for this exploratory study are five
case studies from Europe—Germany, Spain, Turkey, France and the Netherlands—
which have been chosen based on the prominence of the examples of diverging local
authorities as well as their variance in terms of local government law, which reveals
certain comparative insights even if these are preliminary in nature. We close this
chapter with a critical discussion that formulates a number of hypotheses regarding
the interplay between ‘accelerating cities’ and the ‘constitutional brakes’ which arise
in various countries, thereby setting out a research agenda on the topic.
12.2 ‘Accelerating Cities’ Using International Law
to Address Global Challenges
Over the past decades, local governments all around the globe have started to claim a
leading role in addressing global challenges such as those laid down in the Sustainable
Development Goals. Whether it concerns migration management, the realization of
human rights or strengthening sustainability, local authorities have started to develop
their own agendas, with objectives that are sometimes (though not always) more
ambitious than those held by the national government.5In other words, where national
governments merely talk the talk, cities decide to walk the walk.6Such ‘accelerating
cities’ come in many shapes and forms, and often adopt evocative labels ranging from
Cities of Refuge, Fearless Cities, Solidarity Cities, Child Friendly Cities, Sanctuary
Cities to Cities for Climate Protection, or simply Sustainable Cities. Despite the
immense variety of such cities and their networks, it is still possible to offer some
general observations on what causes cities to ‘accelerate’ and how they do so in a
multi-level context.
Where it concerns cities specifically, part of the explanation for ‘urban accelera-
tion’ lies in the fact that they can take the lead in addressing global issues. First, they
4The term is derived from Frug and Barron 2006.
5See, for instance, on local action in the field of human rights, Oomen et al. 2016; for local action
in the field of migration, Bendel et al. 2019; Glorius and Doomernik 2017; Zapata-Barrero et al.
2017; and for climate change Aust 2015; Kern and Bulkeley 2009.
6It is important to keep in mind that cities are not necessarily more proactive or effective in tackling
global challenges, as is discussed critically in Aust 2015.
252 B. Oomen et al.
can do so because of their size: in 2010, the world’s urban population surpassed the
rural population, and the UN estimated that by 2050 68% of the world would live
in cities.7They often also have significant resources at their disposal: many of the
world’s global cities have budgets that equal those of small states, and access to both
the information and the capital needed to steer their own course.8But even smaller
local governments can act on global issues because they, likewise, increasingly have
the formal competencies: since the 1990s, global decentralization efforts have left
local authorities with a formal responsibility for many of the domains in which
global challenges can be met, like housing, education and employment. In addition,
an increasing number of local governments—big and small—want to take the lead
on global issues. Spurred by publications such as Benjamin Barber’s monograph
If Mayors Ruled the World, their actions involve an implicit or explicit critique of
national inability to act on pressing problems that require concerted action.9As such,
accelerating cities do not only seek to undertake action locally but also nationally
and internationally.10
Of course, some local governments will be more prone and able to accelerate than
others, and a large part of the upcoming social science literature on this ‘local turn’ is
concerned with explaining why some cities start moving while others do not. Sabchev,
on the basis of literature that focuses on acceleration in the field of refugee welcome
and integration, first emphasizes the importance of local institutional opportunity
structures such as laws, policies, political parties, local and transnational networks.11
Next, he sets out the non-institutional opportunity structures, and the relevance of
civil society, local universities and private sector actors in explaining why some
cities deviate and others do not.12 In addition to these actors, there are also structural
factors at play such as the amount of available funds, the labour and housing market
conditions and the availability of necessary services.13 A final and often forgotten
set of explanatory variables lies in the discursive opportunity structure: the role of
local identity, public imaginaries and the story that a city tells about itself.14 A factor
that is hardly addressed in this literature, however, is the issue at the heart of this
chapter: how differing national constitutions and legislation and the formal division
7https://www.un.org/development/desa/en/news/population/2018-revision-of-world-urbanization-
prospects.html, accessed 25 October 2019.
8See for a wider discussion Hudson 2010; Sassen 2006.
9Barber 2013.
10See, for instance, Marcenko’s 2019 discussion of local support for introducing the Right to the
City in the UN Habitat III.
11See Sabchev 2018, available from https://citiesofrefuge.eu/publications/comprehensive-relati
onal-model-study-local-responses-arrival-and-settlement-forced. There is more and more literature
on the relevance of such city networks, such as Caponio 2019;Davidsonetal.2019; and Oomen
2020.
12On the role of civil society, for instance, Triviño-Salazar 2018.
13See for instance Ambrosini and Van der Leun 2015 and Filomeno 2016,p.6.
14See, for instance, Marchetti 2020 on the narratives employed by Italian cities concerning
migration.
12 Accelerating Cities, Constitutional Brakes? Local Authorities Between … 253
of power they entail facilitate or hamper cities that seek to accelerate in a drive to
address global challenges.15
Here, it should be set out that such processes of acceleration can make use of a wide
range of mechanisms, in which the law often only plays a minor role. Generally, cities
can seek to advance discursively, in practice or in laws and policies, in all these cases,
either individually or together with other cities—nationally and transnationally. A
‘mere’ discursive acceleration takes place when local leaders explicitly invoke global
goals in speeches or demonstrate normative engagement with international issues by
adopting non-binding local resolutions or in signing international declarations. The
choice of many cities to speak of a climate emergency instead of referring to global
warming is a case in point.16 Such speech acts can, be need not, be coupled to more
practical actions to work towards global goals. A next step is the adoption of actual
laws and policies which explicate and refine the ambitions and provide them with a
normative basis.
Such a normative basis can either be derived from lex lata, i.e. existing inter-
national law (the scope of this chapter) or resemble international law in form or
substance. In terms of process, cities increasingly meet in virtual replicas of inter-
governmental fora, which sometimes run parallel to them: during the 2018 Intergov-
ernmental Conference to adopt the Global Compact for Safe, Orderly and Regular
Migration, for instance, the Mayoral Forum on Mobility, Migration and Development
met in the same town of Marrakech.17 In such fora, networks of mayors and other
city officials set standards and agree on monitoring mechanisms strongly following
the form of international law. In terms of substance, they also replicate the language
on international law in setting out new rights, such as the ‘right to the city’ discussed
elsewhere in this Yearbook. This new right has by now been codified in a wide
variety of local ordinances and regulations and is increasingly recognized nationally
and internationally.18
Within this whole amalgam of soft law and hard law mechanisms for acceleration,
this chapter zooms in on those cities using lex lata, existing and binding international
agreements to decouple their policies from those of the national government as they, to
keep with the metaphor, try to ‘go the extra mile’.19 In addition, we focus on the cases
in which such decoupling results in a conflict with the national government. To be
sure, this need not be the case: in many instances, local investment in meeting global
goals is in line with local competencies and discretion. In many cases, the interests
of local and national actors will also be aligned. In others, however, the multilevel
context of decision-making generates a tension between the national government’s
understanding and implementation of its own international obligations and local
15See, however, Hirschl 2020 for a rare but critical discussion of these aspects.
16In October 2018, 188 jurisdictions in 18 countries had declared such an emergency: https://
iclei.org/en/media/iclei-members-are-leading-the-climate-emergency-movement, last accessed 28
October 2019.
17Oomen 2020.
18See Chueca 2016.
19The term decoupling is derived from the public policy literature, most notably Scholten 2015.
254 B. Oomen et al.
governments’ grasp of, and will to implement such obligations, often supported by
international and supranational organisations.20 In order to properly assess the role
of these organizations, we now briefly turn to the way in which they have related to
these accelerating cities.
12.3 International Support Fuelling the Rise
of Accelerating Cities
As they seek to invoke international law to meet internationally agreed standards,
local authorities have increasingly received support from international and suprana-
tional organizations. These have at times come to reach out directly to local authori-
ties, and to stimulate the formation of local authority networks dedicated to specific
global goals like children’s rights, sustainable development goals or human rights in
general. Moreover, they have drawn up a wide variety of resolutions, reports, poli-
cies and other forms of—mostly—soft law in which they stress the need for human
rights awareness by local authorities, explicate their responsibility to act upon the
relevant global goals, as well as, in the most progressive cases, their autonomy to
act upon them. In order to show the degree to which ‘the international’ fuels local
acceleration, this section reviews a number of these instruments.
Within the United Nations, the Human Rights Council formally started to consider
the role of local government in the promotion and protection of human rights
in 2013.21 This resulted in a number of resolutions and reports, which have also
increasingly emphasized the Sustainable Development Goals.22 In 2015, an Advi-
sory Committee stressed the need to develop guiding principles on local government
and human rights, in order to clarify the role of various actors and institutions in
human rights protection and promotion.23 Additionally, in 2019, the Office of the
High Commissioner for Human Rights issued a research-based report showing the
wide variety of instances of local governments taking human rights initiatives and
working towards the Sustainable Development Goals.24 It emphasized the role of
the UN as a ‘convening power’ to provide space for local government discussions
20The term multilevel government is derived from EU Studies, most notably Hooghe et al. 2001.
It results in a situation of constitutional pluralism (Avbelj and Komárek 2012; Maduro 2009)of
which the current topic of discussion is a manifestation.
21By means of UN Human Rights Council Resolution 24/2. Local government and human rights,
A/HRC/RES/24/2, of 8 October 2013, which in turn built upon work by its advisory committee,
with the mandate repeated by means of UNHRC Resolution 27/4 of 25 September 2014.
22UN Human Rights Council Resolution 33/8. Local government and human rights,
A/HRC/RES/33/8, of 29 September 2016.
23UN Human Rights Council, Role of local government in the promotion and protection of human
rights—Final report of the Human Rights Council Advisory Committee, A/HRC/30/49, of 7 August
2015.
24Local government and human rights Report of the United Nations High Commissioner for Human
Rights, A/HRC/42/22, of 2 July 2019, as discussed in the Human Rights Council in September 2019.
12 Accelerating Cities, Constitutional Brakes? Local Authorities Between … 255
on these themes.25 It also pointed to the challenges faced by local governments in
promoting and protecting human rights, such as the lack of autonomy, difficulties in
liaising with other levels of government, financial constraints and changing agendas
of national governments.26 In conclusion, it held that central government might have
the primary responsibility for the promotion and protection of human rights, but
that ‘local government has an important complementary role to play’, subsequently
calling for increased involvement of local government in human rights mechanisms
and for strengthening their awareness of the themes at hand.27 This emphasis on the
importance of awareness, on local governments’ responsibilities and on the need for
autonomy is also found in the work of treaty monitoring bodies.28 Likewise, UN
special rapporteurs have not only come to meet with local governments, but to also
address them directly.29
Specialized UN bodies have also begun to stress the importance of local authorities
over the past years, providing them with platforms to meet and reaching out to them
directly. Such interest comes out of an iterative process, in which local authorities
strive to be recognized and to influence international processes of standard-setting.
UN-Habitat, for instance, paid an unprecedented amount of attention to local govern-
ments in its 2016 New Urban Agenda and followed their input in recognizing the
right to the city.30 Whilst recognizing the role of countries’ national legislation, it
also committed for the first time to ‘strengthening the capacity of subnational and
local governments to implement effective local and metropolitan multilevel gover-
nance, across administrative borders’.31 Concerning the climate crisis, the 2016 Paris
Agreement recognized that ‘adaptation is a global challenge faced by all with local,
subnational, national, regional and international dimensions’.32 In the field of migra-
tion, the 2018 Global Compact for Safe, Orderly and Regular Migration explicitly
mentioned the role of local authorities as key partners.33
The UN interest in strengthening local government awareness, responsibility and
autonomy in dealing with global challenges is relatively recent and builds upon efforts
undertaken in Europe. In the Council of Europe (CoE), for instance, the Monitoring
Committee of Local and Regional Authorities started to explicate the role of local
25Ibid., para 49.
26Ibid., para 51.
27Ibid., paras 61 and 65.
28See, for instance, the recommendations of the Committee on Economic, Social and Cultural Rights
to Sweden in E/C.12/SWE/CO/6, para 8. Other treaty monitoring bodies have emphasized the need
for participation of ethnic minorities, persons of African descent and women in local government;
for an overview, see A/HRC/42/22 para 43.
29See, for example the Report of the Special Rapporteur on adequate housing as a component of
the right to an adequate standard of living, and on the right to non-discrimination in this context,
Leilani Farha, A/HRC/28/62, 22 December 2014.
30(Habitat III, 2017), United Nations, Habitat III, New Urban Agenda, 2017.
31Ibid., para 90.
32United Nations, Paris Agreement, FCCC/CP/2015/L.9, as adopted 15 December 2015.
33UNGA, Global Compact for Safe, Orderly and Regular Migration, A/RES/73/195, 19 December
2018, para 44.
256 B. Oomen et al.
and regional authorities in fields like education, housing, health, the environment
and law and order in 2010, and the relevance of human rights to all these fields.34 It
called for awareness-raising, but also for the setting up of structures to review local
human rights implementation.35 This was followed by the development of indicators
for considering human rights at local and regional level.36 In 2019, it published a
handbook depicting local authorities as ‘important actors at the forefront of human
rights protection’ and setting out local responsibility in terms of non-discrimination.37
Focused on obligations specifically, it highlighted that human rights are part of their
competencies and that non-compliance ‘can trigger national and international legal
consequences’.38 The process of explicating local responsibilities also takes place
in EU bodies, such as the Fundamental Rights Agency (with its vision of ‘Joined
up Governance’39), the Committee of the Regions,40 and in setting the EU’s Urban
Agenda. As international and supranational bodies emphasize the importance of local
autonomy in attaining these goals, existing instruments such as the European Charter
of Local Self-Government take on renewed importance.41
In short, there is a general trend in international and supranational organizations
to not only stimulate an awareness amongst local authorities of their role in meeting
global goals, but also towards explicating their autonomy to act upon obligations of
international law. The next section will provide some examples of local authorities
acting upon this trend in such a manner that it leads them to a conflict with the
national government.
12.4 Accelerating Cities and ‘Constitutional Brakes’:
Examples from Domestic Case Law
We will now consider a number of examples starting with a classic case that arose
in Germany, a federal state, before turning to instances in Spain (as a quasi-federal
country) and finally in more unitary states like Turkey, France, and the Netherlands.
As stated, the choice for these specific countries in this explorative study is based
on the prominence of the legal cases and the fact that they have therefore also been
relatively well-documented in scholarship. Moreover, the states also display a signif-
icant variance in terms of their constitutional arrangements, which enables us to set
34See for an overview of the documentation, Congress of Local and Regional Authorities 2018.
35Council of Europe Congress of Local and Regional Authorities, Recommendation 280 (2010), as
revised 2011, and Resolution 296 (2010) revised, at 5.
36Molin 2011.
37Council of Europe 2019.
38Ibid., p. 17.
39EU Fundamental Rights Agency 2012.
40See, for instance, Levarlet et al. 2019.
41Council of Europe, European Charter of Local Self-Government, ETS no. 122, 1985, as ratified
by all Council of Europe member states.
12 Accelerating Cities, Constitutional Brakes? Local Authorities Between … 257
out some interesting (albeit only preliminary) comparative observations. They also
have a combined population of almost 300 million people, which illustrates the poten-
tially broad impact of accelerating cities confronting constitutional brakes. Finally, it
should be mentioned that there certainly are other examples that could not be covered
due to the limited scope of this chapter. In Italy and Switzerland, for example, one
can find similar struggles between sub-national entities and national governments,
again with varying outcomes in national courts.42
12.4.1 Germany: Early Rulings Limiting the Competencies
of Local Authorities
Controversies surrounding ‘local foreign policy’ (Kommunale Außenpolitik)in
Germany show that local authorities have for a long time been confronted with
constitutional barriers to their autonomy.43 The potentially relevant constitutional
provisions are in this context Articles 28(2) and 32 of the German Basic Law: the
prior guarantees the right of municipalities (Gemeinde) to local self-government
(gemeindliche Selbstverwaltung) whilst the latter establishes the conduct of foreign
relations as a principally federal competency, with certain limited competencies for
the Länder, of which municipalities form a legal part, insofar as it concerns consul-
tation and their own power to legislate.44 The resulting legal framework arguably
provides a significant though nonetheless circumscribed space for local authorities to
act at the international level, with two seminal decisions of the Federal Administrative
Court (Bundesverwaltungsgericht) being crucial in setting out their constitutional
dispensation.45 Both shall be briefly accounted for at this point.
The two decisions both hail from 1990 and concerned to initiatives by the two cities
of Munich and Fürth to join an international movement against nuclear weapons.46
More specifically, the City of Fürth joined the international network ‘Mayors for
Peace’ that the cities of Nagasaki and Hiroshima had created by the end of the
1980s. This decision was challenged by the government of Mittelfranken, which is
a part of the Land Bavaria, as beyond the competencies provided by the German
Basic Law. The Federal Administrative Court disagreed, clarifying that concluding
inter-city partnerships, including at the transnational level, was an inherently munic-
ipal activity in character and thus within the scope of Article 28(2) of the Basic
Law.47 In addition, it could not be construed as falling within Article 32 of the Basic
Law given the fact that local foreign policy was not generally considered to be a
42See Piccoli 2016 and Piccoli 2018.
43For a detailed recent analysis, see Aust 2017.
44Grundgesetz, Articles 28(2) and 31(1–3).
45Aust 2017, pp. 115–118.
46Aust 2017, p. 115.
47BVerwGE 87, 237, 238.
258 B. Oomen et al.
part of foreign policy,48 which the provision construes rather narrowly as encom-
passing only the relations between the classical subjects of international law.49 If
this decision taken alone suggests a very broad competency for municipal authori-
ties to engage internationally, it finds its limits in the decisions concerning City of
Munich, which was handed down on the same day.50 Here, the Court was confronted
with the question whether Munich could declare itself a ‘nuclear-free zone’, which it
answered in the negative: touching upon federal defence and foreign policy consid-
erations, the measure required proof of a specific relation to local considerations
that was not given in the present case.51 Looking at both outcomes combined, Aust
concludes that the resulting constitutional dispensation is characterized by ‘a certain
ambivalence’ where the local level is equipped with potentially far-reaching authority
regarding symbolic measures (such as entering into transnational networks) while it
is far more restrictive as regards policies that would have tangible political conse-
quences.52 International law arguments were not put forward in these cases, which
is unsurprising given their relatively early date and the fact that they did not raise
any specific issues of international law.
Several other potentially relevant principles can be deduced from German
doctrinal literature and case law: for example, local authorities as legal organs of
the Länder are likely bound by principle of loyalty (Bundestreue),53 which implies,
for instance, that they cannot undermine foreign policy objectives formulated at
the federal level.54 At the same time, border localities in particular enjoy some
constitutional latitude according to Article 24(1) of the Basic Law to delegate local
competencies to institutions dedicated to the ‘neighbourly’ solution of cross-border
problems.55 To sum up, the German constitutional system formulates a broad set of
relatively open principles that create some meaningful dispensations for local author-
ities especially where specifically local issues are at stake. Yet, it also circumscribes
their role vis-à-vis the federal state, leaving a grey zone of potentially (but not neces-
sarily) legitimate local action that federal courts will have to clarify if municipalities
continue or even expand their engagement at the global level. It is noteworthy in this
context that the German legal system does not know a political questions doctrine
that would defer foreign policy matters to the executive.56
48Aust 2017, p. 240.
49Aust 2017, pp. 74–75.
50Aust 2017, p. 117.
51BVerwGE 87, 228, 231.
52Aust 2017, p. 118.
53BVerfGE 8, 122.
54Aust 2017, p. 127.
55Aust 2017, pp. 133–134.
56Folz 2011, p. 244.
12 Accelerating Cities, Constitutional Brakes? Local Authorities Between … 259
12.4.2 Spain: Local and Regional Actions Pre-empted
by the Constitutional Court
The German cases were related to the international activities of municipalities.
Increasingly, however, local authorities also directly invoke international law to
support desired local policies. One telling example is the semi-federal country of
Spain, which saw a stand-off with a ‘glocal’ interpretation of international law on
the one side, and a national interpretation seconded by courts on the other.57 Here,
the litigants were undocumented migrants and those representing them, and the right
at stake in the Spanish disputes between the local and the national revolved around
the right of access to health care. The issue became contentious with the passing of
Royal Decree 16 of 2012, a piece of legislation that held that non-nationals needed
to be registered in order to access health care. The Decree, an austerity measure
responding to the country’s fiscal woes, substantially redefined the earlier policy of
universal access, limiting emergency care to pregnant women, children under 18,
asylum seekers and victims of human trafficking.58
A number of subnational authorities and cities protested and continued to offer
such care. In response to the Decree, 12 out 17 autonomous regions passed specific
laws and departmental directives aiming to continue to provide universal access.59
This decoupling can be understood against the Spanish background of a semi-federal
State in which many subnational authorities (most notably the Basque country and
Catalonia) have long sought to ‘decouple’ their policies from those of the national
government in a wide variety of fields. Barcelona might well be the most famous
instance of this, as one of Europe’s first and most active human rights cities with clear
progressive policies on migration and integration.60 In Barcelona and elsewhere, the
continuation of access to health care for undocumented migrants was thus founded
on the basis of international human rights law.
As in the other countries discussed, the disputes between local and subnational
authorities and the State eventually made it to the Constitutional Court. This Court, for
one, nullified Basque legislation in which the Autonomous Region guaranteed access
to health care for those excluded by the 2012 Decree, in particular undocumented
migrants, and paid for this from its own budget.61 A divided Court ordered that it
57In this context, the term ‘glocal’, as a combination of global and local, seeks to signify the way in
which citizenship in a given locality and the rights that it has to offer become shaped in the permanent
interplay between international, national and local authorities. It highlights that developments at
the local level are constitutive of what happens globally, and the relationship between the global
and the local is dialectical rather than unidirectional (Bauman 1998;Oomen2018; Papisca 2011;
Randeria 2003).
58Peralta-Gallego et al. 2018.
59CESCR 2017. Peralta-Gallego et al. 2018 offers a full overview of the mitigating legislation
passed, in the end, in 15 out of Spain’s 17 autonomous regions.
60On Barcelona as a human rights city, see Grigolo 2011. More specifically on Barcelona’s policies
towards migrants: Agustín and Jørgensen 2019; Gebhardt 2016.
61Constitutional Court (Spain), 134/17, judgement of 16 November 2017, published in Boletin
Official d’Estado, 20 December 2017, 15179.
260 B. Oomen et al.
was the exclusive competency of the State to regulate basic rights in order to ensure
the equality of all Spaniards, and that the Autonomous Region was not allowed to
expand these rights following the international interpretation. In a separate case, a
decree passed by the Valencian Community was also nullified.62
This, in turn, led to concern with the CESCR, which, in its Concluding Obser-
vations on Spain, responded by emphasizing that ‘decentralization and autonomy
can encourage implementation of the Covenant’ and that it remained ‘concerned at
the persistence of certain unjustifiable disparities between the different autonomous
communities, which impede the full enjoyment of some Covenant rights by persons
in some of those communities’. In addition, it highlighted that ‘certain Constitutional
Court decisions prevent the autonomous communities from granting, by means of
their own resources, fuller protection for Covenant rights than that provided at the
national level, finally adding that ‘[u]niform, national solutions are welcome when
they promote the progressive realization of economic, social and cultural rights,
but are of concern to the Committee when they hinder such progressive realiza-
tion’.63 Whereas the Constitutional Court had implicitly cautioned against ‘accel-
erating cities’ in emphasizing the importance of equal treatment of all Spaniards,
the CESCR made the opposite argument in urging Spain to ‘reduce unjustifiable
inequalities between the autonomous communities with regard to the enjoyment of
economic, social and cultural rights, by improving the enjoyment of those rights
in disadvantaged regions, while not impeding the efforts of individual autonomous
communities to provide, by means of their own resources, fuller protection for certain
rights within their territory’.64
Here, as in many such cases, the stand-off remains, pushed into the realm of
pragmatic solutions, unseen actions, and unclear policies. To the detriment of the
people concerned, it has not been fully resolved.
12.4.3 Turkey: Local Authorities Litigating the Right to Water
Of course, Germany is a federal state, and Spain is characterized as semi-federal.
Over the past years, however, instances of local authorities invoking international
(human rights) law have come up in many unitary States, such as Turkey. Here,
the case revolved around the right to water. In the municipality of Dikili, a local
government representing a town of 44,000 in the province of Izmir, leading officials
were charged with ‘abuse of power’ by a prosecutor in April 2008 following the
complaint of an auditor of the Court of Cassation regarding the distribution of the
first 10 tons of tap water per household free of charge, a 50% discount for local
government employees, and a city council decision to forgive citizens’ debt in interest
62Constitutional Court (Spain), 145/17, judgement of 14 December 2017.
63UNCESCR, Concluding Observations on Spain, E/C.12/ESP/CO/6, of 25 April, para 11 in
referring to Articles 2(1) and 28 of the ICESCR.
64Ibid., at 12, in also referring to a previous recommendation (E/C.12/ESP/CO/5, para 9).
12 Accelerating Cities, Constitutional Brakes? Local Authorities Between … 261
rates for unpaid water bills.65 The decisions of the municipality were based on the
one hand on an understanding of water as a human right, along with many other
socially progressive decisions such as free public transport, cheap bread produced
by municipality-owned bakeries, as well as medical examinations for 1 Turkish Lira
(0.15 Euro-Cents) at the Municipal Health Care Centre.66 On the other hand, the
municipality sought to encourage households to use no more than 10 tons of water
per household, in an attempt to combat climate change and water insecurity in the
region.67
The case in the Dikili Criminal Court of First Instance was against the then Mayor
Osman Ozguven, the former Mayor Yuksel Ucar, as well as 18 former and current city
council members, and continued for two years.68 The legal dispute concerned two
pieces of domestic legislation that (a) set a minimum profit rate of 10% as a standard
for municipal service provision, and (b) prohibited public bodies to make discounts
or provide free services unforeseen in the law.69 Throughout the legal proceedings,
the left-wing Mayor and his colleagues employed a discourse of water as a human
right, and invoked the European Charter of Local Self-Governance, which Turkey
has ratified with a number of limitations, as well as international legal instruments
containing the right to water.70 In addition to this, the accused made public state-
ments throughout the process that local governments were public institutions and not
businesses, so their main rationale in decision-making should be public benefit.71 A
claim that the prosecution was a violation of the constitution and a request for it to be
seen before the Turkish Constitutional Court was also brought forward and rejected.
The municipal officials argued that the national government was transgressing into
the jurisdiction and autonomy of local government competencies, violating multiple
clauses of the Constitution, including the provision that the Turkish Republic is a
“Social State”, Article 127 of the Constitution on local government competencies, as
well as the European Charter, which, being a ratified treaty, according to the Turkish
Constitution has the status of law, and cannot be challenged on constitutionality.72
All of those charged in the case were acquitted by the Court in 2010 upon the Pros-
ecutor’s request, where the latter stated that “no practice undertaken for public good
can be considered a crime”.73
65Gultekin 2008.
66Gultekin 2008.
67Gultekin 2008.
68Cumhuriyet 2010.
69Cangi 2011, p. 66. The Domestic Legislation are the Law Nr. 2560 titled “˙
Istanbul Su ve Kanal-
izasyon ˙
Idaresi Genel Müdürlü˘gü Kurulu¸s ve Görevleri Hakkında Kanun”, Article 23; and Law Nr.
4736 Kamu Kurum Ve Kurulu¸slarının Ürettikleri Mal Ve Hizmet Tarifeleri ˙
Ile Bazı Kanunlarda
De˘gi¸siklik Yapılması Hakkında Kanun, Article 1, adopted 19 January 2002.
70Cumhuriyet 2010; Gultekin 2008.
71Bakircay 2008.
72Bakircay 2008; Constitution of the Republic of Turkey, Articles 2, 5, 90 and 127.
73Cumhuriyet 2010.
262 B. Oomen et al.
As cases before courts of first instance are not published in Turkey, we do not
have access to the full decision of the Court. However, from a summary of the
decision, we understand that the Court based its decision for acquittal on (a) the
non-materialisation of the elements of the crime, such as the intention to harm the
public or the objective to acquire personal gain; as well as (b) the principle of equality
in the Constitution,74 based on which providing discounts and free services for the
general public could not be criminalised as long as the law permitted for such free
or discounted services for some vulnerable groups.75 There is no indication that the
Court engaged in any of the arguments relating to international law.
The Mayor, former Mayor and city councillors as well as their attorneys made
public statements after hearings as well as following the acquittal, in which they
stated that they considered the case to set a legal precedent—nationally as well as
internationally—confirming the right to water as a human right, and encouraged
municipalities all around the world to follow their lead.76 The case has indeed found
attention, at least in domestic debates, about the right to water as an international
right, as demonstrated by the references by Turkish academics and practitioners to
the case and interviews conducted with the Mayor of Dikili during the International
Symposium on the Right to Water organized by the Social Change Association
in Diyarbakir.77 The case made national and local news, and gathered significant
sympathy for the local government’s cause for social municipalism.78 It is significant
in this case that the local government of Dikili sought to realise the right to water
through a policy more progressive than those of the national government, and sought
the support of international law both with regards to the substance and existence of
the right to water as a positive right in international law as well as the formal question
of the autonomy of local governments, which was brought forward by reference to
the European Charter of Local Self-Governance.79
12.4.4 France: Communes Invoking International Law
to Strengthen Social Justice Locally
Many cases in which municipalities invoke international (human rights) law concern
undocumented migrants, as was the case in Spain. In another unitary State, France,
the rights of undocumented migrants also formed a reason for local authorities to
resort to references to international law to decouple their local policies from those
of the national government. One successful instance of such local invocation of
74Constitution of Turkey, Article 4.
75See the summary of the decision provided in a paper prepared for the International Symposium
on the Right to Water by the defence attorney in the case Arif Ali, Cangi 2011, p. 67.
76Cumhuriyet 2010.
77International Symposium on the Right to Water 2010.
78Gultekin 2008.
79Bakircay 2008.
12 Accelerating Cities, Constitutional Brakes? Local Authorities Between … 263
international law was that of Grande-Synthe, a small commune of 22,000 inhabitants
to the North of Dunkirk and close to Calais.80 Here, over the past years, over a
thousand of migrants have set up camp hoping to migrate to the United Kingdom. In
2018, the French government and the urban community of Dunkirk started to evict
the persons concerned, a number of whom quickly moved back to a nearby wood. In
response, and in opposition to the government, the commune decided to enable 200
migrants to take shelter in the gym, the youth hall and the centre of popular culture:
a number which quickly grew to 700.
In addition, the commune joined a lawsuit drawn up by nine NGOs, in which
it called for setting up an adequate emergency shelter, stopping the expulsions of
the homeless people into the woods, setting up showers, taps and sanitary services,
providing food to the homeless and informing people of their rights.81 In June 2019,
the Conseil d’Etat granted part of the claim, ordering the prefecture to set up showers
and sanitary services and to inform migrants of their rights. Concerning adequate
emergency shelter for all, the Council pointed at the distinction between asylum
applicants and those whose application had been rejected—the latter would only have
right to such shelter in exceptional circumstances.82 It held that it was up to the State
to decide on measures for shelter, provided that these would comply with the principle
of human dignity as codified in the French Constitution, and the prohibition of cruel,
inhumane and degrading treatment. Where it concerned the evictions it also held
that these were permissible given that the applicants could benefit from emergency
shelter and that, in any case, the material conditions in the camps were bad.83 In
response to the ruling, the mayor indicated that he would demand for compensatory
action to be taken by the state.84
The background to this local action, as so often, can be found in a mayor and
a community with a strong commitment to human rights. At the 2018 New Year’s
reception, for instance, the mayor explained why he opened emergency shelters for
those living in the woods nearby, in stating that Grand Synthe was a place of the
future, solidarity and courage, calling upon the French government to honour both
the French Déclaration des Droits de l’Homme but also the Universal Declaration
of Human Rights, of which the 70th anniversary was celebrated in the village.85
In Grande Synthe, he held, the social services (CCAS) ensure that no one slept
outside, whilst the responsible authorities did nothing. ‘The law’, according the
mayor, ‘obliges us to do the minimum’, ‘even if it means taking on the highest
authorities’.86 The same willingness to invoke international law to strengthen social
80See Conseil d’Etat, Le Juge des Référés, Ordonnance du 21 Juin 2019, No 431115, at 1.
81Ibid.
82Ibid., at 11.
83Ibid., at 20.
84Le Monde and AFP 2019.
85Discours de la cérémonie des vœux du maire, Damien Carême, 13 Janvier 2018, https://
www.ville-grande-synthe.fr/2019/01/14/discours-de-la-ceremonie-des-voeux-du-maire-damien-
careme/, accessed 7 November 2019.
86La loi nous oblige à faire un minimum/Et ce, même s’il faut affronter les plus hautes autorités.
264 B. Oomen et al.
justice locally and to hold the State accountable was apparent in another lawsuit
lodged by the same municipality: the first claim against the French government for
climate inaction.87
12.4.5 The Netherlands: Questions of Local Authority Reach
the European Level
The Netherlands, as a decentralized but unitary state, has also had its share of local
authorities invoking international law. As we have described extensively elsewhere,
a Dutch coalition government of Liberal Democrats and Social Democrats in 2012
led to a governmental policy of prohibition of emergency shelter for undocumented
migrants.88 Municipalities, for both principled and pragmatic reasons, opposed these
policies and opted to—in open contravention of the governmental position—offer
what came to be called ‘bed, bath, bread’—emergency shelter. As one of these
municipalities, the human rights city of Utrecht was closely involved in starting two
lawsuits that eventually were heard by the European Committee on Social Rights
(ECSR), which—generally formulated—concluded that the Dutch policies formed a
violation of human rights obligations.89 On the basis of this ‘international explication
that can then be taken back to the locality’ the Utrecht court, not much later, referred
extensively to these rulings in setting out that Article 8 ECHR put a positive obligation
upon the State to provide undocumented migrants with shelter, food and clothing,
irrespective of their cooperation with their expulsion.90 This, in turn, offered the
municipality of Utrecht a formal basis to continue its humanitarian policies.91
The national government was less pleased with the ruling, and first tried to evade
its consequences by stating that ECSR decisions were non-binding and that the
Netherlands had excluded non-nationals from the application of the European Social
Charter.92 This led to a partially legal, partially political tug-and-pull in which the
CoE Council of Ministers endorsed the decision, and other human rights bodies also
emphasized how a non-conditional right of access to shelter constitutes a human
87Le Monde 2019.
88See Baumgärtel and Oomen 2019; Oomen and Baumgartel 2018; and Oomen 2014, Chapter 7.
89ESCR, European Federation of National Organisations working with the Homeless (FEANTSA)
v. the Netherlands, judgment of 9 July 2014, Complaint No. 86/2012, and ESC, Conference of
European Churches (CEC) v. the Netherlands, judgement of 1 July 2014, Complaint No. 90/2013,
both published 10 November 2014.
90The quote comes from an interview with the lawyer that put the case forward, mr P. Fischer, 20
May 2011.
91The Hague Aliens Court (seat: Utrecht), 201500585/1/V1, judgement of 23 December 2014,
ECLI:NL:RVS:2016:581.
92House of Representatives II, Parliamentary proceedings 2014–2015, 1937–1940, Brief van de
Staatssecretaris van Veiligheid en Justitie, 18 December 2014.
12 Accelerating Cities, Constitutional Brakes? Local Authorities Between … 265
right.93 In 2017, for instance, the Committee on Economic, Social and Cultural Rights
(CESCR) expressed concern at the government’s threat to sanction municipalities
that continued to provide shelter to undocumented migrants, and reiterated that the
ICESCR did not allow the Netherlands to make access to food, water and housing
conditional on an individual’s willingness to return to his or her country of origin.94
With increased politicization of the issue the Dutch State also, in international fora,
stated that it did offer emergency shelter, be it at a number of centralized locations.95
Municipalities did not agree with this position, accusing the government of ‘living
in a paper reality’ and ignoring the fact that they were confronted with homeless
undocumented migrants in their streets.96
This stand-off between a number of municipalities and the national government
also took the form of a number of disputes, on which the two highest Dutch adminis-
trative courts ruled on the same day. One case concerned the question as to whether
undocumented migrants in Amsterdam had an unconditional right to shelter, a ques-
tion answered affirmatively by the Amsterdam District Court at an earlier stage.
The Central Appeals Tribunal, however, held on appeal that the municipality of
Amsterdam could refuse such applications and refer migrants to central locations,
where the State would have the discretion to put conditions (like cooperation with
return) upon access to shelter.97 This understanding—in line with that of the Dutch
government, and opposed to that held by both international human rights bodies
and local authorities—was reiterated by the Administrative Appeals division of the
Council of State, which ruled that Articles 3 and 8 ECHR only oblige the State to
offer shelter to that undocumented migrants in ‘special circumstances’.98
93See Commissioner for Human Rights, ‘Report by Niels Muiznieks Following His Visit to the
Netherlands from 20–22 May 2014’, (Strasbourg: Council of Europe, 2014), 126–29; Mandates of
the Special Rapporteur on extreme poverty and human rights; the Special Rapporteur on adequate
housing as a component of the right to an adequate standard of living, and on the right to non-
discrimination in this context; and the Special Rapporteur on the human rights of migrants, NL
1/2016, 25 February 2016.
94UNCESCR, Concluding Observations on the Netherlands, 23 June 2017, E/C.12/NLD/CO/6,
paras 39 and 40.
95See European Court of Human Rights, Hunde v. the Netherlands, judgment of 5 July 2016,
17931/16, para 5.
96Dutch Association of Municipalities, Letters to the chair of the parties in parliament, 28 April
2015, ECSD/U201500740.
97Central Appeals Tribunal, cases 14/4389 WMO, 15/5095 WMO, 14/4382 WMO, 15/5094 WMO,
14/4387 WMO, 15/5093 WMO, 26 November 2015.
98Appeals Division of the Council of State, case 201500577/1/V1, 26 November 2016.
Because of the focus of this chapter, we refrain from discussing the subsequent steps, such as
the Bestuursakkoord, also because this did not address the fundamental tension in the interpretation
of human rights obligations between the national government and local authorities.
266 B. Oomen et al.
12.5 Discussion: Researching Local Authorities Invoking
International Law before Domestic Courts
The foregoing set of cases portrays a legally diverse and dynamic field of engage-
ment that includes federal, quasi-federal and unitary states. Whilst it is commonplace
by now to claim that local authorities act in an increasingly assertive manner at the
international stage,99 we can discern another trend: they may even be willing to pick
legal battles against ‘superordinate’ levels including the national government. This
is no coincidence given the (essentially legal) processes of devolution and decen-
tralization that have taken place in many countries and the growing attention that
international actors pay to their functions and responsibilities. As we have argued
elsewhere, cities in particular have become a new ‘frontier’ in international law, their
involvement in law-making processes providing a chance to reinforce the effective-
ness and the legitimacy of norms that have come under pressure in recent times.100
The growing international interest in local processes is, in turn, likely to ‘pull in’
municipal authorities and other sub-national actors. As they are trying to cope with
newly found tasks and competencies, they begin to recognize that new opportunities
await them at the international level. Taken together, the novel linkage and changed
domestic contexts reinforce emergent tendencies of a ‘decoupling’ of local from
national policies, with confrontation turning into a viable strategy.101
The examples discussed here point towards two general trends. The first lies in
the observation that such legal stand-offs are not only merely a theoretical possibility
but already an empirical reality. Cities like Utrecht in the Netherlands, the Spanish
regions, or Grande-Synthe in France contest more or less openly policies that derive
from ‘superordinate’ levels, defending their interest even when it is possible or even
likely that they will pay a political price. In some cases, such ‘defiance’ seeks to
achieve systemic change,102 with different cities joining forces against the national
government; again, we can point to the Netherlands as a relevant example. Moreover,
we see nascent trends of increased invocation, where relevant, of international law
and more specifically international human rights law to challenge the legal permis-
sibility of national policies rather than only their political rationale. With law being
potentially both a shield and a sword,103 local authorities in cities such as Dikili in
Turkey have also discovered them as tools for defending their own local policies
vis-à-vis actors that disagree with them. Put simply, a recourse to international law
promises to give sub-national authorities the chance to put constitutional order on its
head even where they do not, from the perspective of local government law, enjoy
any specific competencies.
99E.g. Acuto 2013,Barber2013,Aust2015.
100Oomen and Baumgärtel 2018a.
101Oomen 2020.
102Ibid.
103Handmaker 2019.
12 Accelerating Cities, Constitutional Brakes? Local Authorities Between … 267
The second finding marks a counterpoint to the first one. Our examples show that
cities and other sub-national authorities are still confronted with very real barriers
to their ambitions in national constitutional and administrative rules. This is not a
new insight even when it comes to their rise at the international law. Frug and Barron
stress that ‘cities… can exercise power only within the legal frameworks that others
have created for them’, which ‘largely determine the legal status of cities, and…
have a major influence on both the experience of city life and the practice of local
self-government’.104 We certainly agree. Even the most proactive cities like Utrecht
or Barcelona have to live with constitutional constraints to their local authority.
The mere fact that these are increasingly trying to overcome those limits does not
automatically decrease the latter, which remain very palpable.
A few more far-reaching conclusions can be drawn from our study of the examples
especially when combined with more general theoretical and doctrinal considera-
tions. A look at the older German cases on nuclear-free zones shows that domestic
judiciaries are well-placed to use the law as a filter for local government policies,
making a distinction between ‘harmless’ symbolic acts that are within their compe-
tences and more consequential actions that, arguably also for that reason, are held
to infringe upon competency areas of the national state. Such rulings that are defer-
ential to the national government are to be expected even international human rights
law is being invoked, with the Netherlands being a point in case. Moreover, due
to the lack of standing of sub-national authorities before international tribunals, the
exhaustion of local remedies equates to an exhaustion of all remedies.105 As seen in
the cases concerning emergency shelter for undocumented migrants in the Nether-
lands, reaching that next level then requires a completely novel and separate legal
claim by a different actor, normally an individual or NGO. In such a case, the recal-
citrance of local authorities becomes a costly and essentially redundant detour, at
least legally speaking. Such strategic considerations are salient especially in consti-
tutional settings where judiciaries are known to be more accommodating to national
governments.106 More generally, it would be premature to assume that any domestic
court is by default the ally of a local administration when the contrary could just as
likely be the case.107
Such considerations bring us to related questions of legal culture. Though admit-
tedly an elusive concept, it is undeniable that local authorities are partially guided by
‘relatively stable patterns of legally oriented social behaviour and attitudes’108 that
one can find in any given legal system. While we posit that international organiza-
tions and other actors could gradually be altering the self-perception of municipal
governments, it is safe to assume that hierarchical conceptions of the organization
of the state and legal authority remain very present in many minds including those
104Frug and Barron 2006,p.1.
105Baumgärtel 2021.
106Spijkerboer 2007.
107Cf. Resnik 2007.
108Nelken 2004,p.1.
268 B. Oomen et al.
of domestic judges. This, yet again, does not immediately change with the addi-
tion of human rights law and discourse into the equation—after all, local authorities
engaging with human rights is itself a rather recent phenomenon.109 And if consti-
tutional and administrative brakes are at the same time also mental barriers, then
we must ask ourselves how much it would take to tear them down. The examples
discussed here are simply too few to suggests that this will be an easy task, leaving us
with the unanswered question where, in general, we currently stand in such a process.
Then again, recent European legal history is no stranger to tectonic shifts in legal
ordering as the introduction of the doctrines of direct effect and supremacy in EU law
highlights. In fact, the European Court of Justice explicitly affirmed that the direct
effect principle is also applicable to municipal administrative authorities,110 effec-
tively turning them into agents of EU law in terms of implementation. However, the
Court also proceeds on an assumption of non-intervention in ‘internal matters’ based
on the valorisation of the constitutional identities of EU Member States; this funda-
mental principle, though undoubtedly important, can lead to ambiguous outcomes
since it not only (by default) favours national governments in state-local disputes but
also renders invisible potentially legitimate local public policy concerns that may
arise, amongst others, in the process of the implementation of EU law.111
Finally, there are normative complications that need to be addressed. Even if we
believe that greater involvement of local authorities as human rights actors would
be generally positive,112 it may lead to unintended consequences. The most salient
one, not unknown to the literature, is backlash. As Blank argued more than a decade
ago, ‘local governments that may try to overreach their powers… might encounter
some problems from the state that will preempt, curb, and use its internal power
to weaken the rebelling city’.113 In such a case, an accelerating locality would not
only be slowed down by constitutional ‘gears’ but possibly brought to a complete
halt. It is important to be mindful here of the inherent inequality of the struggle,
with the central authority always being in a formal position to alter the constitutional
dispensation while sub-national actors are not. While such a dependency should
not be overstated given the complications that come along with administrative and
especially constitutional reform, it remains an option that legal analysts must not
discount. Another consequence, well visible already, is an increase in inequality
between municipalities: large and small, urban and rural, well equipped to engage
internationally and much less so. Here, the emphasis on equality put forward by the
Spanish Constitutional Court in the cases pertaining to the right to health can well
be understood and appreciated. Accelerating cities, from a normative point of view,
are to be welcomed only where they serve to speed up the rest of the peloton in the
109Oomen and Baumgärtel 2014.
110European Court of Justice, Fratelli Costanzo SpA v Comune di Milano, Case 103/88, judgment
of 22 June 1989, ECR 1989, 01839.
111Nicola 2012, p. 1309.
112Oomen and Baumgärtel 2018a.
113Blank 2006, p. 928.
12 Accelerating Cities, Constitutional Brakes? Local Authorities Between … 269
direction of the objectives of international law, and not if they serve to create further
in-country divisions.
There are, in short, serious objections to be made against the claim that local
authorities are (or could be, or even should be) extending their constitutional dispen-
sations by relying on international human rights law. It is a completely open question
in our view, with this chapter merely scratching the surface of this development. Our
most important finding is therefore that there is an urgent need for more legal and
empirical studies.114 More concretely, future research will have to investigate and
compare in detail the dynamics of local government law in different countries and
how they are shaped by an invocation of international law in general, and human
rights in particular. Based on our explorative study, we can deduce a number of
relevant questions which such studies could tackle. In how far has there been an
increase in legal stand-offs between national and local governments? What kind of
cities, towns and regions are involved in such cases and what is the role of politics in
these processes? To what extent are outcomes seen to be pre-determined by various
local government laws? How ‘open’ are the latter in different places to arguments
that are based on international law including human rights law? Does it make any
difference whether these confrontations involve questions of constitutional or admin-
istrative law? Are domestic judiciaries willing and able to defend the position of local
governments? In this respect, what is the role of legal culture and the culture within
the judiciary? Can we see a breaking point for national governments where they
start clamping down on overly recalcitrant local authorities? Without more specific
information of such kind, it will not be possible to determine whether constitutional
norms are merely gears that local authorities could shift in the future or actual brakes
that will determine the end of the road.
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Barbara Oomen holds a chair in the Sociology of Human Rights at Utrecht University/University
College Roosevelt. She co-edited Global Urban Justice: The Rise of Human Rights Cities and
wrote extensively on local authorities and human rights. She leads the five-year program Cities of
Refuge funded by the Netherlands Organization for Scientific Research, which seeks to explore
and explicate the relevance of international human rights as law, praxis and discourse to how local
authorities in Europe welcome and integrate refugees.
Moritz Baumgärtel is an Assistant Professor at the School of Law of Utrecht University and at
University College Roosevelt. He is also a fellow of the Netherlands Institute of Human Rights
and has previously worked as a lecturer at Tilburg University. As a senior researcher of the ‘Cities
of Refuge’ project, he currently focuses on the international legal obligations and policy initia-
tives of cities and their local governments in the migration domain. His monograph Demanding
Rights: Europe’s Supranational Courts and the Dilemma of Migrant Vulnerability was published
by Cambridge University Press in 2019.
Elif Durmu¸sis a Ph.D. Researcher in the project Cities of Refuge of Utrecht University (led by
Barbara Oomen). She has an LLB from Ankara University and an Advanced LLM (cum laude)
from Leiden University on Public International Law. In Cities of Refuge, she researches local
governments’ refugee policies and human rights engagement in Turkey, in Switzerland, and in
transnational city networks. She particularly focusses on the generation of social justice. She is
a Founding Editor of the blog Human Rights Here of the Netherlands Network of Human Rights
Research.
