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Local Government Studies
ISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/flgs20
Transnational city networks and their
contributions to norm-generation in international
law: the case of migration
Elif Durmus & Barbara Oomen
To cite this article: Elif Durmus & Barbara Oomen (2021): Transnational city networks and their
contributions to norm-generation in international law: the case of migration, Local Government
Studies, DOI: 10.1080/03003930.2021.1932478
To link to this article: https://doi.org/10.1080/03003930.2021.1932478
© 2021 The Author(s). Published by Informa
UK Limited, trading as Taylor & Francis
Group.
Published online: 20 Jun 2021.
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Transnational city networks and their contributions
to norm-generation in international law: the case of
migration
Elif Durmus
a
and Barbara Oomen
b
a
Faculty of Law, Economics and Governance, Utrecht University, based in Middelburg,
Middleburg, Netherlands;
b
Professor of Sociology of Human Rights, Faculty of Law,
Economics and Governance, Utrecht University (University College Roosevelt), Netherlands
ABSTRACT
Local governments and transnational city networks (‘TCNs’) have been increas-
ingly engaging with norm-generation in the traditionally state-centric interna-
tional law and migration governance. We identied two modes of this
engagement: participation in mainstream state-centric processes, and norm-
generation within their own networks. Through four examples, his article
identies four functions of this jurisgenerative activity. Theexternal function is
bringing local interests and expertise to inuence international normative
developments. The internal function is regulating local governments' behaviour
towards their own citizens, creating and upholding standards. Through a hor-
izontal function, local governments recruit peers and rally around normative
documents that oer a compact, crystallised expression of their interests.
The integrating function enables local governments to combine fragmented
issues of international law in unied, practical toolkits for their own use. All
throughout, TCNs challenge state-centric international law and their traditional
exclusion from it by demonstrating competence and uency in international
norm-generation relating to migration.
KEYWORDS International law; transnational city networks; human rights; migration; norm-generation;
local governments
I. Introduction
At the closing ceremony of the 2018 World Human Rights Cities Forum, in
Gwangju, South Korea, the moderator asked the large international audience
how they had benetted from the conference. The microphone was oered
to a United Nations (UN) ocial from the Secretariat of the Advisory
Committee to the UN Human Rights Council (HRC) who stated that ‘a lot of
the input was drawn’ by the HRC from a previous session of the same Forum
(the 2015 report that the HRC drafted on the role of local governments in the
CONTACT Elif Durmus e.durmus@ucr.nl Project: Cities of Refuge, University College Roosevelt,
P.O. Box 94, Middelburg 4330 AB, Netherlands
LOCAL GOVERNMENT STUDIES
https://doi.org/10.1080/03003930.2021.1932478
© 2021 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-
NoDerivatives License (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use,
distribution, and reproduction in any medium, provided the original work is properly cited, and is not altered,
transformed, or built upon in any way.
promotion and protection of human rights).
1
This statement clashes starkly
with the traditional assumption that international law is created by states,
and states alone. The Forum is only one of the places that enable local
governments and their associations to connect, discuss, inspire, but also to
formulate documents which sometimes hold normative statements and
commitments as well as foreseeing follow-up and implementation mechan-
isms – in short, all that which concerns norm-generation.
The growing activity of local governments and the transnational city net-
works (‘TCNs’) that they create at the global legal and political stage has
received increasing attention in the literature (Davidson et al. 2019; Oomen
and Baumgärtel 2018; Aust 2015) and is at the core of this special issue. As
also discussed in other contributions to this special issue (such as Bendel
a. o.), there are many potential outcomes of such engagement, both practical
(sharing information, seeking (nancial) support) and symbolic (showcasing,
story-telling, shaming national governments) (Oomen 2019). One striking
outcome discussed less often, however, is jurisgenerative, and involves the
setting of standards, often in the form and language of international law.
Whereas TCNs have been active in generating norms in a plethora of elds –
sustainability, culture, human rights, health, inclusion – many of these elds
converge in the governance of migration. This article therefore explores how
and why TCNs engage in jurisgenerative (norm-generating) practices in the
governance of migration that resemble international legal practice. What are
the forms (modes) this behaviour materialises in, what are its functions, and
how does it contest traditional international law-making?
To tackle these questions, this article rst (Section II) introduces the notion
of norm-generation in international law by explicating recent changes and
trends in international law- and policy making, including its pluralisation.
Next, Section III introduces the two modes by which TCNs seek to contribute
to international law and governance: (1) by seeking inclusion in state-centric
processes and (2) by creating quasi-legal local-centric norms, and the con-
crete contestations to international law this entails. In this section, we zoom
in on migration and human three instances of norm-generation. The UN
Habitat Programme, the European Charter for Safeguarding Human Rights
in the City, and the Mayors’ Marrakech Declaration in relation to the Global
Compacts for Refugees and Migration. The nal section (IV) moves from the
how to the why of this type of norm-generation by TCNs, discussing, on the
basis of the illustrative case of the Cities for Adequate Housing Declaration,
the possible external, internal, horizontal and integrating functions behind
norm-generation by TCNs as well as the cross-cutting contestation it consti-
tutes to state-centric international law.
2
The analysis in this article ows from a mixed-methods approach to data
collection and analysis, combining a legal analytical reading of normative
documents and ndings from eld research in TCNs.
3
In terms of terminology,
2E. DURMUS AND B. OOMEN
we follow the special issue choice for a focus on Transnational City Networks
(TCNs) even if networks often represent urban and rural populations as well
as a range of other actors, which explains why some scholars have opted to
speak of Transnational Municipal Networks (Kern and Bulkeley 2009; Oomen
2019). For the purposes of this article, we use the acronym ‘TCNs’ to refer to
both institutionalised networks as well as conferences of local governments
shaped around a common purpose such as the adoption of a charter or
declaration. With this broader denition, we seek to capture norm-
generation processes by local governments in dierent degrees of organisa-
tion and institutionalisation, as well as the dialectic eects between the acts
of collectively generating norms and organising around institutionalised
networks.
II. Norm-generation in international law
Traditionally speaking, the term international law is used to describe the body
of rules and principles that govern the legal relations between nation-states
(Shaw 2014; Aust 2010). States have long been considered as the only holders
of legal personality, that is to say, the only entities with the capacity to have
rights and to bear duties and to make and enforce the law (Klabbers and
Wallendahl 2011). This condition, however, was not a given before the con-
solidation of the so-called ‘Westphalian order’ nor does it reect the reality
today (Nijman 2016). Starting in the 1950s with the inclusion of international
organisations (‘IOs’) into the elite club of ‘subjects of international law’, the
international legal arena has become much more complex, with diverse
actors holding varying degrees of inuence and a fragmented body of rules
and practices.
Just as actors have diversied (with IOs, NGOs, armed groups and more), so
have the sources of international law. Classic international law recognises
only treaties, custom, and general principles of law as sources (Art. 38, Statute
of the International Court of Justice). However, the recent decades have seen
a shift from the usage of these traditional forms of binding law to the
tendency to make and follow so-called ‘soft law’: rules and principles that,
while not designed to be binding, still hold a normative power over interna-
tional actors (e.g., Chinkin 1989; Hillgenberg 1999; Guzman and Meyer 2010).
This shift to softer and non-binding law has developed parallel to the gen-
eration of international norms becoming more inclusive of other actors of the
international society. For instance, the Sustainable Development Goals (SDGs)
adopted in the Agenda 2030 were constructed, negotiated, debated and
nally adopted with the inclusion of a wide array of actors: States, interna-
tional organisations, NGOs, businesses and sub-national authorities. The
SDGs are not binding and cannot be used to hold governments accountable
before court, but they nonetheless shape the normative perspectives and
LOCAL GOVERNMENT STUDIES 3
behaviour of actors across the eld. This represents a preference for multi-
stakeholderism in international relations well as an appreciation for govern-
ance through partnerships (Kunz 2013) and principles (Black 2008).
Another aspect of the complexity of the international legal arena is that
the distinction between binding law and ‘soft law’ is not absolute. Non-
binding instances of policy, principles or guidelines, such as the Universal
Declaration of Human Rights, have lain the groundwork for future binding
laws by kick-starting advocacy, domestic legislation, and socialisation
(Buergenthal 2006). Legal positivist critics of the trend towards soft law
point out the lack of coercive force of these types of regulations, which
they consider a sine qua non requirement for any norm to be considered
law (Weil 1983). On the other hand, international law, as opposed to domestic
law, lacks a central enforcement mechanism altogether and depends on its
persuasive power to be upheld by states and other actors. Scholars of the
New Haven School of Law have gone a step further to look beyond the
dichotomy of binding vs non-binding and seen a complex system of norms
which are created, interpreted, challenged and enforced by competing norm-
generating communities with varying persuasive power and authority
(Berman 2007). These norms travel among international actors and govern-
ance levels in a constant multi-directional process that inuences, challenges,
counters and alters them (ibid.). This process, in turn, informs the identities
and perceived interests of the actors in a community (ibid.), i.e., by ‘socialis-
ing’ them into following the norms. Normative claims brought forward by
actors also open up debates oering higher chances for error correction,
bringing a wider eld of legal imagination to the attention of others and
granting some successful candidates the status of binding law (Berman 2007,
303). This is the understanding of norm-generation that we will apply in this
article, as we look at norms– binding or non-binding– formulated in an
international context and exerting a ‘normative pull’ (Franck 2006). We will
not be engaging in the empirical question of whether these norms are
followed or in the legal doctrinal question of whether the cities generating
these norms have the authority to do so, but only with the socio-legal
observation of the processes of their creation, the contestation they consti-
tute to traditional state-centric law, and their purposes.
III. Two modes of international norm-generation by TCNs
Local governments have been increasingly active both in migration govern-
ance, in particular (Ahouga 2018), and in international normative processes
worldwide, in general (for human rights, see Durmuş 2021). Their normative
engagement has constituted a contestation to international law in three
fundamental ways
4
: the demand for the inclusion of local governments in
multilateral jurisgenerative processes developing mainstream international
4E. DURMUS AND B. OOMEN
norms, the negotiation of the boundaries of local competences vis-à-vis
central and regional governments through reference to international law
(see Oomen, Baumgärtel, and Durmuş 2021), and the assertion of local
governments’ autonomous capacity to create norms. These contestations
will become tangible in the analysis of the case studies below.
Our case studies focus not on all normative engagement by local govern-
ments but practices in their non-state and autonomous rather than substate
character (as state organs) (Nijman 2016; Durmuş 2020). This autonomous,
contesting normative engagement of local governments remains underexa-
mined in literature and by IOs whereas the substate character (UNGA 2008,
Art. 4) is increasingly recognised (see HRC 2015).
Another demarcation concerns our emphasis on the jurisgenerative aspect
of local governments’ normative engagement (Berman 2006). There are many
instances of local governments acting in their autonomous capacity, some-
times in actual deance of central government policies, taking steps in
relation to instruments of international law which are already constituted as
binding law, though perhaps not for their respective State, such as San
Francisco’s ratication of the The Convention on the Elimination of All
Forms of Discrimination Against Women (1979) (Davis 2016). These practices,
though valuable and autonomous, do not generate new international norms,
and are thus outside the scope of this article.
The instances we will focus on instead in this article are the UN Habitat
Programme and the development of the Right to Housing, the European
Charter for Safeguarding Human Rights in the City, the Mayors’ Marrakech
Declaration and the Cities for Adequate Housing: Municipalist Declaration of
Local Governments for the Right to Housing and the Right to the City (here-
inafter ‘the Housing Declaration’). The thematic variance in these cases, all of
which relate to migration in their content and application, is an illustration of
the fact that laws and regulations governing migration are not found neatly
in a single document governed by a single institution. Laws and policies
governing migration are located in an intersection of dierent international
legal regimes such as human rights, development, humanitarian law, refugee
law, and EU law – being an exemplary (international) regime complex (Alter
and Raustiala 2018). The cases presented were selected from an initial pool-
ing and mapping of 21 normative documents and TCN charters relating to
migration for their variation in terms of temporal placement, degree of
institutionalisation of the network of local governments, and the (aspired)
legality of the norms generated, thus enabling broad exploration of the
jurisgenerative engagement of TCNs.
The UN Habitat, for one, forms the most institutionalised participation
avenue for local governments in established international governance.
Local governments have acquired UN accreditation and seats at UN bodies
through this process, thus contributing to the codication of the Right to
LOCAL GOVERNMENT STUDIES 5
Housing – one of the earliest substantive entry points for local governments
in the subject-matter of international law. They have also organised their
own institutionalisation in parallel to the international processes, demon-
strating the ‘rallying’ function of norm-generation, which will be discussed
below. The European Charter is, on the other hand, the most well-
recognised and inuential quasi-legal normative document drafted auton-
omously by local governments, characterised by its solid legal structure. The
Charter had an inuence from Gwangju to Montreal (Garcia-Chueca 2016;
Frate 2016, 70) and is drafted with the intention of carrying legal value. The
Marrakech Declaration, nally, perfectly demonstrates the interplay
between seeking inclusion in state-centric processes and TCNs generating
their ‘own’ norms (in this case, the Declaration). This Declaration, as the
most recent document selected for analysis, also explicitly deals with
migrants and refugees and seeks to contest and contribute to the latest
developments in the global governance of migration and asylum. These rst
three instances (UN Habitat, the European Charter, the Marrakech
Declaration) will be analysed in the present Section as dissimilar cases
showing the spectrum of jurisgenerative TCN activities, particularly demon-
strating the two modes of norm-generation: seeking inclusion in state-
centric processes and creating local-centric norms. The last instance, the
Cities for Adequate Housing: Municipalist Declaration of Local Governments
for the Right to Housing and the Right to the City (hereinafter ‘the Housing
Declaration’) will be used in Section IV to illustrate the cross-cutting ndings
on the external, internal, horizontal and integrating functions of norm-
generation by TCNs in migration governance.
The ndings below are based primarily on desk research into policy docu-
ments and a close legal analytical reading of normative documents comple-
mented by eld research, in particular, in Marrakech at the adoption of the
Mayors’ Marrakech Declaration.
5
Desk research was further complemented
through participant observation (attended at times as an observer, at times as
participant) in jurisgenerative meetings of TCNs such as the 2018 World
Human Rights Cities Forum, a 2018 UN HRC session in which local govern-
ments were invited to discuss their role concerning human rights, the 2018
Barcelona Cities for Rights Conference, and the Human Rights Cities meeting
at the 2019 Fundamental Rights Forum as well as three in-depth interviews.
6
Data were analysed in QSR-Nvivo.
A. Seeking inclusion in state-centric law-making processes
As discussed, local governments increasingly seek involvement in both pro-
cesses of law-making and decision-making in regional and global governance
(Aust 2015; Blank 2006), with TCNs as an important vehicle. Representing
their constituent local governments, TCNs have sought inclusion in important
6E. DURMUS AND B. OOMEN
global norm-generation processes, thus contributing to the creation of bind-
ing as well as soft law. Local governments’ engagement in the process
leading to the adoption of Agenda 2030 and their rigorous and successful
lobbying for the inclusion of SDG 11 on safe, inclusive and sustainable
communities provide examples of processes of generating non-binding but
nevertheless highly meaningful norms (Aust and de Plessis 2018). This recog-
nition of SDG 11 has also provided an entry point for local governments to
localise the SDGs and voluntarily report on their local progress highly relevant
to, for instance, migrants (de Visser 2018). On the other hand, local govern-
ments and the TCNs that amplify their voices have also been involved in the
processes of development of hard law such as the Paris Climate Agreement
(Aust 2019; Tollin 2015).
The inclusion of TCNs and thus local governments is often encouraged by
international organisations, which nd in them helpful partners to implement
their international objectives at the local level, at times even seemingly
circumventing the national level which might, at the time, be advocating
for more isolationist policies (for the case of migration, see Ahouga 2018). The
varying degrees of appreciation international organisations demonstrate for
addressing local governments is often reected in the strength and quantity
of the institutional structures in place for an ongoing inclusion of local
governments in both law-making and decision-making processes. Whilst
most UN organisations remain conservative and strongly oriented towards
states, the UN Habitat Programme forms an exception, opening up to include
local governments and TCNs, allowing them to be continuously involved in
the generation of norms relevant for migration and human rights, such as the
Right to Housing.
a. The UN habitat programme
The UN Centre for Human Settlements (later, the Habitat Programme) has
over the years oered the most reasonable, practical and necessary entry
point and testing ground for local governments’ engagement with the United
Nations system, as well as a process for local governments to organise
around. The need for a more coordinated global movement and organisation
for local governments was rst formulated during the 1992 UN Conference on
Environment and Development in Rio de Janeiro (Habitat AGRED 2004,
para.3). Then, in 1996, the rst World Assembly of Cities and Local
Authorities constituting of national and international associations for local
governments took place during the Habitat II Conference in Istanbul, with
a focus on adequate shelter for all and sustainable human settlements
(Habitat II 1996, 139, para.8). The agenda points of adequate housing for all
and sustainable human settlements were strongly advocated by local gov-
ernments and successfully added to the conference agenda despite vehe-
ment protest by countries such as the US (Future Cities and Habitat II 1996, 3).
LOCAL GOVERNMENT STUDIES 7
The World Assembly of Cities and Local Authorities, which would later
become United Cities and Local Governments (UCLG) – the largest and most
representative organisation of local governments today – gathered in meet-
ings parallel to the conference and decided to ‘institutionalize the coordina-
tion mechanisms that had been established to prepare for the Conference’
(Habitat AGRED 2004, para.8). The Assembly also committed ‘to pursuing
closer partnerships with the United Nations in the implementation of the
Habitat Agenda and to continuing their eorts in pursuit of a global charter
for local self-government (Habitat II 1996, 139, para.11). This partnership
would ‘continue in the form of regional, national and international processes
and networks that would continue after Habitat II’ (Ibid, para.9).
While Habitat II was an important milestone for the eorts to codify the
Right to Adequate Housing for all, Habitat III in Quito (Ecuador) was truly the
step towards developing the international law in the eld, especially with
regards to the laying out of the elements for the security of tenure (Marcenko
2019). The explicit local government involvement with the New Urban
Agenda that was adopted at the conference resulted in the inclusion of ‘the
Right to the City’ as a new concept in international law: a collective right that
considers cities as commons for the realisation of all human rights including
environmental rights (Habitat III. 2017). The notion, which is continuously
contested and developed, was clearly promoted by TCNs with the interests of
migrants in mind. UCLG, for instance, points out how it includes ‘multicultural
and welcoming cities, which value the richness of migration’ (Habitat III.
2017).
7
When the former centre became the UN Habitat Programme, its
Rules of Procedure included an ocial accreditation clause for local govern-
ments that allowed them to directly engage in the United Nations for the rst
time without prior permission of their national governments.
8
The UN Habitat
Programme now also encompasses the United Nations Advisory Committee
for Local Authorities in which heads of dierent TCNs represent the local
governments of the world, and many Habitat campaigns and projects have
had local governments or TCNs directly in their executive positions (Habitat
AGRED 2004, paras. 5–6).
B. Facilitating local-centric norm-generation
A focus on the jurisgenerative activities of TCNs, however, also reveals another
mechanism of norm-generation. This second mode of norm-generation con-
stitutes a larger challenge and contestation to international law and estab-
lished assumptions, both substantively and formally.
Part of this local-centric (led primarily by local governments, as opposed to
state-centric) norm-generation constitutes generation of norms that substan-
tively t within the subject-matter of international law but are created for and
by a single locality. The declarations and related political and institutional
8E. DURMUS AND B. OOMEN
innovations brought forward by Human Rights Cities form one example of
these processes that are deeply relevant to the position of migrants in cities
worldwide (Oomen, Davis, and Grigolo 2016). This article will, however, deal
with local-centric norm-generation that has been conducted not within and
for a single local territory but through TCNs (both permanently institutiona-
lised TCNS as well as those loose networks gathered around an ad hoc
jurisgenerative objective) and designed to be applicable for multiple localities.
Two cases with particular salience to migration, the European Charter for the
Safeguarding of Human Rights in the City and the Mayors’ Marrakech
Declaration, illustrate how TCNs oer innovation to existing positive interna-
tional law and how interrelated local-centric norm-generation is with the
mode discussed above.
a. European Charter for the Safeguarding Human Rights in the City
The European Charter for the Safeguarding of Human Rights in the City is the
rst human rights charter drafted by local governments collectively. It was
adopted in Saint Dennis, France, in 2000, following a succession of two-yearly
meetings in dierent European cities (European Charter 2000, Address). The
Charter explains its own raison d’être in addressing ‘the men and women of
the city “(Ibid)”’. It acknowledges that there is the Universal Declaration of
Human Rights, as well as the European Convention on Human Rights, which
provides legal, justiciable human rights protection, but points out that the
eectiveness of these rights on the ground is unsatisfying and that citizens
nd it dicult to access through ‘the labyrinth of legal and administrative
procedures, which is where the City comes in (Ibid). Additional reasons given
for a separate Charter are the urbanisation of the world, with increasing rural-
urban migration into cities, as well as the city being now 'where the future of
mankind lies (...) above all, for those foreigners who arrive seeking freedom
and new experiences and looking for employment, to live here temporarily or
permanently' (Preamble, 1) bringing about a need for a practice of city-based
‘cityzenship’ (Vrasti and Dayal 2016; Oomen 2020). In terms of the content of
human rights norms, the Charter states that urban life requires, on the one
hand, rights to be redened within the urban context, such as is the case with
employment and mobility, and on the other hand, for new rights to emerge
from the urban context, such as a respect for the environment, the guarantee
of sound food, tranquillity, possibilities of social interchange and leisure, etc.
A striking element of the Charter is the legal format, the legal language
and the intended legal value. The drafters intended to write a binding docu-
ment and used strong legal language and the formatting of an international
treaty. Similar to traditional international legal texts, the Charter’s Preamble
lists the UDHR and international and regional treaties whose creation local
governments have not been a part of (Preamble, para.1). In addition to this,
the Preamble refers to and places itself within the framework of former local-
LOCAL GOVERNMENT STUDIES 9
centric normative documents, endorsing the European Charter of Local
Autonomy and the Barcelona Agreement (1998), adopted at the European
Cities Conference on Human Rights. Readers with a background in interna-
tional law notice how the documents created in the process of the TCNs also
possessed increasingly binding legal titles implying a gradual increase of
normativity: ‘Agreement’ rst and ‘Charter’ later.
The main body of the Charter is divided into Articles as they are in
international treaties and their text addresses the ‘signatory cities’, ‘local
authorities’ or ‘the municipality’ in third-person plural – similar to the terms
‘signatory States’ or ‘State Parties’ in international treaties. The tense used is
simple present, or the imperative form, which strengthens the sense of
obligation. For example, ‘The signatory cities develop policies designed to
improve the access of the citizens to Law and Justice.’ (Art. XXV, para.1) –
strengthens a sense of obligation. Under the section titled ‘Final Provisions –
Legal Signicance of the Charter and Mechanisms for its Application’, the
Charter becomes one of the rare so-called ‘soft law’ documents to address the
question of its own legal status. The Charter does not foresee an explicit date
or condition for its entry into force. However, it stipulates that when it is
‘passed’ it will remain open for the signature of localities ‘which want to
endorse its aims’ (Final Provisions, para.1.). While the Charter refers to ‘signa-
tory cities,’ the terms 'pass', 'endorse' and 'aims' are indicative of an intention
to create soft law and cannot be found in the Vienna Convention on the Law
of Treaties as the formal acts by which an actor is bound by a legal text. These
choices could be accepted as signs of the drafting local governments’ recog-
nition of the fact that local governments still do not have the competences to
fully become ‘party’ to a ‘treaty’ and to possess ‘obligations’ following
‘ratication’.
Nevertheless, the drafters do clearly intend the Charter to be implemen-
ted, by, for instance, requesting signatory cities to ‘incorporate into their local
ordinances the principles and standards and guarantee mechanisms contem-
plated in this Charter and mention it explicitly in the legal reasoning for
municipal actions’ (Final provisions, para.2). They also refer to the Charter in
all ordinances ‘as the primary legal standard binding the city’ (para.4). In
addition, the signatory cities are also pushed to ‘recognize the irrefutable
legality of the rights stated in the Charter’ and to ‘undertake to reject and
terminate all legal transactions, particularly municipal contracts, the conse-
quences of which would militate against the implementation of those rights,
and to act in such a way that all other legal entities will also recognise the
legal signicance of these rights’ (para.3.) As an internal monitoring mechan-
ism, the signatory cities are to create a (local) commission to assess the
application of the Charter every two years and publicly announce the results
(Final Provisions, para.5).
10 E. DURMUS AND B. OOMEN
The Charter also places its drafters and City-parties within a multi-level
constitutional structure (Preamble, para.4). This principle is explicated in the
main text as the Principle of Subsidiarity which regulates the division of
labour between the central, regional, and local governments, and should be
agreed upon in a way that will prevent the central and regional governments
from both neglecting their obligations in the locality and also from trespas-
sing into municipal competence (Art. VII). This acknowledges local authorities’
limited and diverging constitutional competences across the map while
arguably adding to the maturity and self-awareness of the normative docu-
ment. Recognition of this multi-level constitutional structure also places the
document within a wider system of legal commitments entered into by
dierent levels of government, thus giving the document a realistic and
decent chance of implementation in dierent contexts. The determination
of what local government competences per country are is then left for the
individual signatory cities.
Concerning the norms generated, and thus the substantive contestations
and innovations vis-à-vis existing established international law, there are, for
instance, the rearmation of the Right to the City, as a cross-cutting principle
applicable to all the rights contained in the Charter. In addition, the Principle
of Equality and Non-Discrimination are to be upheld for all persons ‘who
inhabit the signatory cities, independently of their nationality’ (Arts. I–II). This
contrasts with international law and legal practice which often allows for
states to provide dierent levels of rights protection for persons of dierent
status, especially national citizenship. The way in which the Charter under-
lines the absolute universality of the rights it enshrines contests a state-
centric notion of citizenship and replaces it with a local-centric ‘cityzenship’
promising the highest possible level of equality amongst inhabitants of the
locality (Oomen 2020; Vrasti and Dayal 2016).
Another very interesting substantive innovation vis-à-vis international
human rights law is the Duty of Solidarity enshrined in Art. V of the Charter.
In international human rights law, Art. 29(1) of the UDHR mentioned the general
duties that everyone has towards the community, but this was never worked
out in binding law. The Charter, in contrast, bestows this duty upon the local
community towards its own members (including the local governments which
participate in this duty by ‘promoting the development and quality of public
services’) and is foreseen to be carried out by local associations and networks of
solidarity. In addition, an article on International Municipal Cooperation (VI)
obliges cities to ‘undertake to cooperate with regional and local authorities
from developing countries in the areas of infrastructure, protection of the
environment, health, education and culture, and to involve the maximum
number of citizens’ at the same time that it urges ‘nancial agents’ of develop-
ing cities to participate in nancing programmes while enabling access of as
many of their citizens to the said funds. Therefore, a duty of solidarity and
LOCAL GOVERNMENT STUDIES 11
cooperation both within the territory of the locality and across its borders is
explicated and specied with greater detail than it is in international human
rights law.
When it comes to the main body of the Charter– the substantive rights–the
Charter’s division into parts demonstrates a perfect example of local govern-
ments’ awareness and appropriation of the systemic categories of interna-
tional law in combination with their contestation. Next to the classic division
of civil and political rights vis-à-vis economic, social and cultural rights, the
Charter introduces a new category of rights: Rights Relative to the Local
Democratic Administration, which include the articles on ‘Eciency of
Public Services’ and the ‘Principle of Transparency’. These are supplemented
with a whole range of new substantive rights, such as a General Right to
Public Services of Social Protection, the Right to the Environment, the Right to
Harmonious and Sustainable City Development, the Right to Circulation and
Tranquillity in the City and the Right to Leisure. Even under articles containing
rights already existing in international law, local government drafters of the
Charter have placed deliberate contestations of the content of those rights.
To cite a few examples amongst many, Article XVI stipulates the Right to
a Housing. This right to a ‘proper, safe and healthy housing’, ensured by the
municipality by creating an appropriate oer of homes and district amenities
for all without distinction on the basis of persons’ resources, recognises the
special needs of the homeless, women who are victims of violence, those
attempting to ee prostitution, as well as the rights of nomads ‘to stay in the
city in conditions which are compatible with human dignity’., the Article is
more elaborate than its equivalent in the ICESCR (where it is hardly individu-
ally recognised) and more socially progressive in its terminology. This is
visible in the obligations that it imposes upon the municipality and its
defragmentation and integration
9
of dierent areas of international law
(e.g., women’s rights, rights of nomadic peoples such as the Roma).
In all, no article in the Charter is a simple copy and endorsement to a right
that is currently, in the same wording, established in international law. In
contrast, all content of the Charter includes some level of contestation and
intention to progressively develop the rights and their protection mechan-
isms for all who live in the city, including migrants.
b. Mayors’ Marrakech Declaration
Another example of norm-generation within TCNs, geared specically
towards migrants, is the Mayors' Marrakech Declaration. This 2018
Declaration was drawn up by the Mayor's Migration Council, an initiative
closely related to three TCNs: C40 Cities, the UCLG and the Global Taskforce of
Local and Regional Governments.
10
This Council was formed at the fth
Mayoral Forum on Human Mobility, Migration and Development meeting in
the margin of the large UN Intergovernmental Conference on the Global
12 E. DURMUS AND B. OOMEN
Compact for Migration (GCM), in Marrakech in December 2018. Cities had
already contributed by means of side events and input documentation to the
New York Declaration for Refugees and Migrants that formed the basis for the
two Global Compacts discussed at the Conference, ensuring that the UN
recognised both the needs of local authorities as the ‘rst receivers of
migrants’ as well as the need for a multi-stakeholder approach in developing
migration policy (New York Declaration 2016, paras.54, 69).
In Marrakech, mayors from all over the world, some from countries that
withdrew from the UN process, such as Italy and the US, met in the Mayoral
Forum in the days preceding the Conference to draw up their own commit-
ments pertaining to migration.
11
The result of this process was a Declaration
which contains local government commitments and calls to action directed
towards the international community, national governments and the private
sector, but also a number of underlying norms. It was read out by Toronto
Mayor Valérie Plante in between statements from NGOs and other UN orga-
nisations, in a conference tent set up next to the tent in which governmental
representatives read out their commitment to the Global Compact. This was
a vivid illustration of the awkward position that local governments hold at
international conferences – neither fully state, nor non-state actor.
12
In terms of its contents, the Marrakech Declaration diers from the two UN
documents that were discussed by UN member states, in parallel, in terms of
both its objects and its substance. In terms of the object of norm-generation,
the mayors recognised that the legal binary between refugees and migrants
is articial and often not helpful in terms of policy making. Instead, they
issued one Declaration, committing to advancing ‘the principles and objec-
tives of both compacts in unison’, a testimony to what Benjamin Barber
dubbed the ‘pragmatic politics’ of local government (Barber 2013). In addi-
tion, before listing their commitments, they iterated their commitment under
the wider objective of ‘inclusive, safe and sustainable societies’ (SDG11), thus
subtly shifting the focus from the regular, safe and orderly migration that was
the object of the documents produced by the UN member states. The norm
thus put forward (a right to inclusion, to security, to sustainability) might be
closely related to the existing human rights and the SDGs, but are – at
present – not laid down in the binding instruments of international law. In
addition to highlighting these overall norms, signatories of the Marrakech
Declaration also committed to ‘accelerate our eorts to advance four priority
objectives’: addressing and reducing vulnerabilities, providing all migrants
with safe access to essential services, empowering migrants to realise full
inclusion and social cohesion and eliminating discrimination (MMC
2018, 3–4).
The Marrakech Declaration also demonstrated local governments’ strong
interest in a roadmap for being included in the formal and informal monitor-
ing and follow-up mechanisms of the Global Compacts, seeking to help
LOCAL GOVERNMENT STUDIES 13
ensure their realisation in case national governments lose their enthusiasm.
These eorts led to the next (sixth) Mayoral Forum on Mobility, Migration and
Development (subtitled: ‘City Leadership in Implementing the Global
Compacts’) to be included for the rst time in history as an integral part to
the Global Forum on Migration and Development
13
in Quito 2020. As part of
this mechanism, cities could sign a city action pledge with a strong emphasis
on local action, national, and international advocacy.
14
In this manner, the
Mayors’ Marrakech Declaration of 2018 and its follow-up form a perfect
example of how interrelated the two modes of norm-generation by TCNs
are, as cities seek the highest possible inclusion into the state-centric pro-
cesses of the Global Compacts and seek to inuence the outcome documents
(GCM, GCR) but at the same time issue their own normative document with
their uncensored vision on what international law on the topic as well as what
their own role in realising it should be.
IV. Exploring the functions of international norm-generation by
TCNs
It is clear, by now, that TCNs adopt both the form and language of interna-
tional law, (co-) generating new norms both in mainstream state-centric
processes as well as their own local-centric gatherings and organisations.
The question is, however, why TCNs would frame their normative ideals in the
form and language of international law. Here, an analysis of the documents
generated and the processes around them reveals four main functions of
jurisgenerative practices in the eld of international law: an external, an
internal, a horizontal, and an integrating function. These functions, deduced
from empirical analysis of these documents, in turn, draw a comprehensive
picture of TCNs' role as actors within the norm-generating community that is
the international legal order and their contestation of a conception of inter-
national law that rejects this pluralism and excludes them. Let us illustrate
these four functions of norm-generation through the example of a normative
document highly relevant for migration that very clearly encapsulates all of
them: the ‘Cities for Adequate Housing: – Municipalist Declaration of Local
Governments for the Right to Housing and the Right to the City’ (2018) (‘the
Housing Declaration’).
Let’s begin with the external function of norm-generation. Local govern-
ments seek to inform and inuence the global agenda, (or the mainstream,
State-centric international law-making processes), whether these concern
soft or binding law. By crystallising ideals in the compact legal form of the
normative document, TCNs add legitimacy to the expressed interests and
values and also demonstrate competence and uency in the legal language
which is necessary to meaningfully participate and be taken seriously in the
international norm-generation process. In this manner, they are both
14 E. DURMUS AND B. OOMEN
empowered by the pluralising and 'softening' international legal order gra-
dually recognising them as stakeholders and also behave as 'actors' seeking
to improve and cement their position therein. When they are taken seriously,
they can arguably help create better norms internationally, those which
include the local interests, experience and creativity. This reects the ‘error-
correction’ function of pluralist and inclusive norm-generation according to
the New Haven School (Berman 2006, 303). The addressee of a normative
document produced through the second mode of norm-generation often
reveals the degree to which the drafters carried such an external intention.
The Housing Declaration primarily targets national governments and inter-
national organisations. It demands for local governments to be endowed
with more public authority to regulate the private housing sector in order to
realise the Rights to the City and the Right to Adequate Housing. This
demand can only be realised by domestic legislative changes within their
States while international organisations and their pressure can encourage the
process. The Housing Declaration also lists some core elements of the signa-
tory cities’ understanding of the content of the two rights, endorsing the
perspectives of local governments on the currently developing law. The
Declaration can thus be understood as the advocacy of a normative proposal,
competing with other proposals of varying degrees of persuasive authority in
the international realm as the New Haven School observes.
At the same time, the Housing Declaration reveals the internal (regulatory)
function of achieving on the ground results concerning social justice within
the TCNs’ constituencies. This is the core function of norm-generation in
general, as expressions in the imperative form intend regulation and demand
compliance (Onuf 1985). But how could this be, when local governments are
not legal subjects of international law with ocial law-making capacity? The
answer is that while positive international law seeks to freeze in time condi-
tions of being an ‘insider’ to international relations, this does not stop
ocially excluded actors from generating their own norms, with just as
much jurisgenerative intention. This is what the legal analytical reading of
normative documents reveals, when these refer to substantive rights, obliga-
tions, commitments, enforcement mechanisms, and legal value. While not as
clearly mimicking the language of international law as the European Charter,
the regulatory internal function of the Housing Declaration is seen in specic
practical demands or commitments that – when realised – are expected to
increase the well-being of local residents. Signatories of the Housing
Declaration, for instance, demand ‘more legal and scal powers to regulate
the real estate market in order to ght against speculation and guarantee the
social function of the city’ (Housing Declaration 2018, 1) and commit to
‘planning mixed, compact and polycentric cities where housing (. . .) contri-
butes to the social, economic and environmental sustainability of the urban
fabric’ (Ibid., 2).
LOCAL GOVERNMENT STUDIES 15
Simply having been assigned this regulatory function in no way guaran-
tees generated norms persuasive power, compliance, and nally, on-the-
ground change. Instead, the power of these documents in generating change
lies in the premise that normative engagement increases actors’ ownership of
the norms that they create or endorse, compared to those imposed upon
them (Ryngaert 2008). Koh argues that engagement with (binding) law and
its contestation is both an identity-building and interest-building process
(1996). When local governments come together, through TCNs, to engage
with, negotiate, and formulate norms that they can stand behind, this process
constitutes them in return, and contributes to their identity – such as ‘Cities
for Adequate Housing’ or ‘Cities Against Racism’. Participation in these norm-
generative processes also shapes local governments„ understanding of what
is in their interest, according to what others believe is in their interest. Thus,
ownership develops.
There is also a third, horizontal function to TCNs crystallising their inter-
ests in the compact legal form of normative documents. Norm-generation
processes can be both a rallying means and a rallying end. Local govern-
ments come together around the formulation of normative texts, both
when the said texts are products of State-centric international legal pro-
cesses and when they are local-centric norms. When local governments
gathered in parallel to the Habitat II and created their rst World
Assembly, they sought to inform and inuence the Habitat process. At the
same time, that rst worldwide gathering functioned as a starting point for
further organisation and institutionalisation. When it comes to the Housing
Declaration, the website of UCLG, the largest TCN worldwide, explains how
‘at the initiative of the City of Barcelona, UCLG initiated the process for
a declaration aimed at rallying local governments worldwide to ght the
nancialization of cities.’
15
The Declaration, which itself includes the state-
ment ‘We also propose joining forces to call for more resources and powers
from both national and international supra-municipal bodies’ (Housing
Declaration, Point 5) was launched ‘during the rst Forum of Local and
Regional Governments ever held within the framework of a UN’s High-Level
Political Forum (HLPF)’
16
with the intended purpose to serve as a compact
communication of the signatories’ interests vis-à-vis other potential allies
(external function).
One last noteworthy function is the integrating function of TCNs’ norm-
generation. Local governments demonstrate a signicant knowledge on the
fragmentation in international law, which is the process of international law
branching out and specialising further and further into a more complex
system (Brems and Ouald-Chaib 2018; Oomen 2014). Local governments,
arguably to make the system more foreseeable for themselves and to be
able to consult fewer sources and documents containing obligations and
commitments to dierent legal elds, seek to bring together fragmented
16 E. DURMUS AND B. OOMEN
aspects of international law and connect them into an integrated system. One
example of this process is the defragmenting and integrating eect of the
European Charter as described above. In the Charter, consumer rights, rights
of nomads, rights of women, rights of migrants, refugees, foreigners, the
urban poor, and other groups are incorporated into one single text, as
opposed to the international legal system which addresses most of these
vulnerable groups in separate legal texts. In the Housing Declaration, issues
around housing, inclusion of refugees and migrants, economic equity, and
sustainability are harmonised into one crystallised ideal.
V. Conclusion
Amongst their multitude of activities, TCNs generate norms, including those
that relate to migration and human rights, presenting them in the language
and the form of international law. They do so in two distinct modes and
institutional settings: by seeking inclusion in mainstream State-centric inter-
national law-making processes and by creating local-centric norms in pro-
cesses without the inclusion of States that, however, look, feel, and seek to
work like international law. This norm-generation leads to a three-fold con-
testation: pushing for the recognition of local governments' actorhood and
capacity in international norm-generation, using international law to protect
and (re-)negotiate local competences and autonomy, and asserting local
governments’ (Berman, 2006). Such new norms often emphasise inclusion
and the relevance of rights to all who live in the local authority, thus holding
important promise for migrants and for the realisation of social justice more
broadly.
As discussed above, the choice for norm-generation seems to have four
distinct functions. Externally, TCNs seek to inform and inuence the agenda
and development of international law and policy. Internally, such norm-
generation “seeks” to shape and regulate the local governments„ behaviour
towards their own localities, contributing to rights-realisation and social
justice on the ground, with the added ‘stick’ of follow-up and monitoring
mechanisms agreed upon in the TCN context. The horizontal function of
norm-generation is that of rallying local governments around similar interests
and values crystallised within a compact set of norms expressed in legal
language. Both the process of norm-generation and the formulated norms
can help bring local governments together. The fourth integrating function of
local governments’ norm-generation is the eort to make the complex and
fragmented system of international law easier to apply, seeking to defrag-
ment and harmonise dierent norms and subelds of international law with
each other. All this TCN activism in the legal eld thus – transnationally –
critically contributes to international law and underlying objectives of global
justice. At the same time – sub-nationally – the generation, contestation and
LOCAL GOVERNMENT STUDIES 17
invocation of international norms serves as an important bridge towards local
justice in elds like housing and inclusion of migrants. In the Special Issue
context of TCN activism in the governance of migration, this research, above
all, constitutes an initial analysis of some jurisgenerative activities of TCNs and
oers valuable insights. The full potential of such TCN activity can, however,
only be understood through a wider and deeper empirical research into all
norm-generation conducted by TCNs. This includes an assessment of TCNs
normative power (how (much) they inuence actors), and their longitudinal
inuence on the development of international law.
Notes
1. Participant Observation conducted at the World Human Rights Cities Forum
2018, October, Gwangju, South Korea.
2. We would like to thank our dear Cities of Refuge colleague Dr Moritz
Baumgärtel for the brainstorming sessions and his initial identication and
formulation of the external and internal functions.
3. This research was conducted as part of the Cities of Refuge funded by the VICI
grant of the Netherlands Scientic Organisation (NWO). Cities of Refuge
explores the relevance of human rights as law, praxis and discourse in how
local governments in Europe receive and integrate refugees. www.citiesofre-
fuge.eu @UUCoR.
4. We would like to thank the anonymous reviewer for this suggestion.
5. 12 formal interviews, as well as participant observation during the Mayoral
Forum and the Intergovernmental Conference to Adopt the Global Compact
for Safe, Orderly and Regular Migration, Marrakech, 8–10 December 2018.
6. With two anonymous key gures in TCNs focusing on human rights and cities,
and one high-level ocial of an active local government.
7. https://www.uclg-cisdp.org/en/activities/right-to-the-city/Habitat-III/new-
urban-agenda.
8. Rules of Procedure of the UN Habitat Programme, adopted December 2003,
Rule 64.
9. Fragmentation refers to international law branching out ever further in
specialised sub-elds that become detached from each other and start
regulating similar factual circumstances with dierent norms. See (Young
2012).
10. https://www.mayorsmigrationcouncil.org/.
11. Observations and interviews with mayors (of Malaga, Rabat, Kampala, Montreal,
Los Angeles) and the vice-mayor of Athens and Milan in Marrakech,
8–10 December 2019.
12. Personal observation by the 2nd author, 10 December 2019.
13. The GFMD is an informal, non-binding and state-led framework born, from an
proposal by former UN Secretary-General Ko Annan, that promotes practical,
evidence-based outcomes and cooperation between governments as well as
non-government stakeholders. http://gfmd.org/process/background.
14. UCLG, MMC, IOM, Call to Local Action on Migration: Cities Working together for
Migrants and Refugees (2019), https://gfmd.org/les/documents/mm_call_to_
action_on_local_migration_yer_nal_v1.pdf.
18 E. DURMUS AND B. OOMEN
15. https://www.uclg.org/en/media/news/cities-adequate-housing-call-action-
ensure-right-housing.
16. Ibid.
Disclosure statement
No potential conict of interest was reported by the author(s).
Funding
The work reported here was funded by Nederlandse Organisatie voor
Wetenschappelijk Onderzoek 453-16-001.
Notes on contributor
Elif Durmus is a PhD researcher at Utrecht University in the project ‘Cities of Refuge’.
She researches the engagement of local governments and their networks with inter-
national law, human rights and migration policy making. She is the author of ‘A
Typology of Local Governments“ Engagement with Human Rights: Legal Pluralist
Contributions to International Law and Human Rights’, The Netherlands Quarterly of
Human Rights, April 2020.
Barbara Oomen holds a chair in the sociology of human rights at University College
Roosevelt/Utrecht University in the Netherlands. She leads the ‘Cities of Refuge’
research project, which considers the relevance of human rights to how local autho-
rities in Europe welcome and integrate refugees, and is the co-editor, with Martha
F. Davis and Michele Grigolo, of Global Urban Justice: The Rise of Human Rights Cities,
Cambridge University Press, 2016.
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