International Legal Personality/Subjectivity of Cities

Abstract

There seem to be two intuitive approaches to the question whether cities are international legal subjects/persons. First, that evidently, cities are neither persons nor subjects of international law. The second, that what matters is how cities function in reality with relations to international law, international relations, and international institutions – not whether they are conceptualized as subjects/persons. This chapter, however, departs from these two intuitive approaches. It calls into question the denial of cities’ status in international law by pointing to their growing importance as central actors on the international legal plane. These changes, albeit gradual and incremental, might be the seeds of a future, formal recognition of the status of cities in international law. This is so because, theoretically, any entity given rights and obligations under international law can be given international legal personality. Thus, this essay also examines the theoretical possibility of acknowledging cities’ international personhood/subjectivity – how it would come about, and what it might mean for the very concept of international legal personality/subjectivity. Conceptual debates over legal personhood and subjectivity often expose the competing utopias and normative orders, which exist with regard to a particular legal system. Conceptualizing international legal personality/subjectivity so that it would include cities is a way of debating and clarifying the role that cities might have within a more utopic vision of the world order. And this normative-utopian endeavor, always in connection with the actual-real, is one of the main purposes of this essay. Thinking about cities as international legal persons also exposes our status-quo bias, and the fact that it is often unjustifiable, theoretically. Indeed, while we think that it is impossible to justify granting legal personality to cities since the category ‘city’ is too loose and indeterminate, we take it for granted that states deserve such status. But it is no less scandalous to call both India and Andorra states – and grant both of them international legal person – than it is to label both Beijing and Charlottesville cities, and deprive both of them this internationally coveted status. Yet we currently recognize all states’ international legal status, and deny cities’, despite the lack of coherent justification for this dichotomous legal treatment. The question of who is a legal person/subject reflects as well as affects which are the sources of international law, and what are the ends and goals of the international legal system. As Janne Nijman convincingly argues, only a theoretically robust conceptualization of the idea of international legal personality can reveal and guide international law’s ultimate commitment. Similarly, I argue, conceiving of cities as subjects/persons of international law is not only a description of where things might be heading. Such theoretical conception entails an alternative normative worldview, one which sees cities as crucial building blocks of the desirable world order, and which understands international norms as generated also by cities. Thus, international law’s ends include a structural protection for local autonomy, and an individual right to local self-government. This novel worldview in which international legal personality/subjectivity is conceptualized so as to include cities does not do away with the state. The emerging global urban utopia does not ‘go back’ to the era of city-states, where cities were truly autonomous in that there were no sovereign states above them. The current waning of states’ power and the concomitant empowerment of cities does not mean that states disappear or even lose their dominant position as the primary subjects/persons of international law. Rather, even the most powerful cities, those that might gradually obtain international legal personality, will still be operating from within a legally sovereign state, and will be legally subsumed by and subordinated to it, at the final account – as they are indeed constituted by the state. Yet alongside this ultimate control, which the state has over them, cities will possess a separate legal personality in the international political-legal order.