Sanskriti Sanghi, Assistant Professor at JGLS, challenges the rigidity of state-centrism in international law, and considers the persistence resistance of a plurality of actors in the context of ‘collective action problems’. Particularly focusing on municipalities and domestic courts, Sanskriti provokes reconfiguring who acts in International Law, and their inherent limitations.
The international community is characterised by a number of issues termed as ‘collective action problems’, the resolution of which is in the interest of all stakeholders to global regulation. Overcoming these problems at the global level, however, requires States to cooperate and agree on a common standard for enforcement, a goal that is impeded due to the conflicting interests of States. Even if a common standard is arrived upon and embodied in a legal instrument, its enforcement is often weak as it is applicable within the territory of the State and subject to its national policy (see, generally, Simmons 2012). Moreover, breaches of the common standard often go unnoticed or are condoned at the global level due to ineffective internal and peer review mechanisms (Deshman 2011) and disregard for accountability by global governance bodies (Stewart 2014). The failure of national governments to overcome ‘collective action problems’ due to these impediments has led to the emergence of municipalities and domestic courts as actors whose invocation of international law alongside domestic law to overcome these problems presents new promise.
In this essay, I assert that these actors variegate the global space of decision-making and enforcement, and present the possibility of overcoming ‘collective action problems’ through their efforts in pursuance of a direct sense of responsibility. Concomitantly, due to the frequent exclusion of these actors from (standard) discourses in International Law, their persistence represents resistance within and through institutional mechanisms that is worth taking note of. Rather than arguing for a displacement of the State from its position of primacy in favour of these actors, however, I maintain that it is equally essential to identify their limitations in attempting to overcome ‘collective action problems’ before reposing complete faith in them (Aust 2015).
The role of municipalities in overcoming ‘collective action problems’
Municipalities, which are the ‘production sites of the new global economy’, have pro-actively endeavoured to address ‘collective action problems’ and challenge traditional norm-setting. A hybrid of the public and private as well as the sovereign and civil society (Aust 2015), municipalities can cut across sovereign, national, and scalar identities and invert the permeation of international law into the domestic sphere. Due to these unique features, municipalities present the promise of overcoming ‘collective action problems’, a promise that is complemented by their ability to make difficult choices with a certain degree of autonomy (see, generally, Katz and Bradley 2014). Municipalities broadly employ three legal techniques to achieve this endeavour. I will illustrate these techniques by discussing their intervention in climate change regulation, activities that have aided the imagination of cities as global actors and norm-creators capable of resolving such problems. The first technique for mitigation of environmental degradation pursued by municipalities is unilateral policy action. This was showcased, for instance, by the prescription of higher standards for climate mitigation by California than the Environmental Protection Agency (the ‘California effect’). The second technique employed is litigation, as pursued by municipalities in the United States of America (hereinafter USA/ US) against State policies which negate the right to a clean environment, with a close nexus to the rights to health and welfare (Massachusetts v. Environmental Protection Agency). The third technique employed by municipalities is the formation of networks and cross-border alliances, such as the C40 Cities and the United States Conference of Mayors.
The use of a combination of these techniques over a period of time has resulted in the constitution of municipalities as global actors (Nijman 2016) that are capable of: entering into agreements reliant on the language and form of international law, such as the One Planet Charter; independently enforcing international law, as exemplified by the urban implementation of the Kyoto Protocol through the US Mayors Climate Protection Agreement wherein municipalities strive to meet/exceed national targets; and, participating in international inter-governmental organisations, as exemplified through the cooperation between institutions such as the UN Environment Programme (UNEP) and UN-Habitat with inter-city organisations such as Metropolis and United Cities and Local Governments (UCLG). The ability of municipalities to invoke international law and participate in the legal arena complements the techniques used by them to seek enforcement of the common standard in the domestic sphere. Their efforts towards overcoming ‘collective active problems’ such as climate change, and more recently health security and migration, reflect cognisance of the urgent need for action and cooperation, qualities lacking in the efforts of national governments. Interestingly, not only does action undertaken by a municipality influence the efforts exerted by other municipalities (Rashidi and Patt 2018), the back-and-forth between municipalities and national governments also produces a more sophisticated discourse on solutions to ‘collective action problems’. These efforts, particularly those pursued before judicial fora, provide an anchor for domestic action that is often key to overcoming ‘collective action problems’ — be it the demand for legislative efforts, mobilisation of civil society or the public, or agenda setting for the executive (Simmons 2012).
The capacity of such efforts to have far-reaching implications for the lives of the governed is, therefore, noteworthy. Through participating in jurisgenerative activity, municipalities can aid the creation and/or implementation of norms more suited to the needs of the governed by accounting for ‘local interests, experience and creativity.’ Their actions can also perform the pivotal function of revealing the extent to which the norms imposed and implemented thus far deviate from such considerations revolving around the locale. Further, as Curtis observes, such jurisgenerative activity that decentralises the global order and redistributes (some) power from the State to the municipalities is unlikely without the participation of charismatic local leaders from across the world in urban politics. The Cities and Local Government Devolution Act, 2016 introduced by British Chancellor George Osborne that devolves functions relating to health, transport, skills, and planning and New Delhi mayor Sheila Dikshit’s Bhagidari Scheme that seeks to involve citizens in democratic governance are examples of this. Acting in networks known commonly as Transnational Municipal Networks (TMNs), these municipalities acquire knowledge and receive access to financial and political resources which help them undertake governance activities and promote individual and collective activism for results-driven implementation of International Law while being mindful of the lived realities of the governed.
While a stable municipality ‘can increase equity, inclusiveness, sustainability and resilience in the world’, caution must however be exercised in treating them as substitutes for States. This is because municipalities raise concerns about the reiteration of traditional hierarchies and corporate capture much like national governments (Aust 2015), despite the relatively low chance of a powerful assertion of ‘exit and voice’ yielding such an imbalance. Municipalities also raise concerns about the fragmentation of the State by a ‘thousand city-states’, a concern which is of continued relevance due to the normative influence of States in international law. As per scholars, there is also an asymmetry between municipalities which accept their responsibilities toward overcoming ‘collective action problems’ and the ones most required to do so (Woodruff 2018). For municipalities to truly possess the capacity to overcome ‘collective action problems’, this needs to be addressed. As the role of municipalities intensifies, it is also imperative for global networks to ensure inclusivity and representation from across urban geographies, thereby according due importance to democratisation amidst a decentralising global order (Garcia-Chueca 2019). Thus, while municipalities present the potential to contribute significantly to the resolution of ‘collective action problems’, the challenges to the realisation of this potential must necessarily be identified and worked upon.
The role of domestic courts in resolving ‘collective action problems’
The potential of municipalities to overcome ‘collective action problems’ is mirrored by the promise displayed by domestic courts. National courts are motivated to resort to international law alongside domestic law to maintain the vitality of their positions and reclaim the political space increasingly being restricted by the delegation of authority to international institutions and globalisation (Benvenisti 2008). The decision of a domestic court, in coordination with other domestic courts, leads to norm-creation which, if complied with by the executive, is often reflective of customary international law (Benvenisti and Downs 2013). Moreover, domestic courts attend to the concerns of a democracy deficit and disregard for accountability at the international level by acting as a check-and-balance on the executive’s discretion (Benvenisti and Downs 2013) and considerably defang the two-level game (Putnam 1988) that perpetuates imbalance.
Domestic courts also strengthen the ability of international institutions/tribunals to withstand executive pressure and offer them tools to resist assertions of ‘exit and voice’ by States through reaffirming decisions (which instantiate their situation within a network of domestic courts) which may be cited as reflective of customary law by international institutions/tribunals (Benvenisti and Downs 2013). In return, international institutions/tribunals act as a fulcrum for the coordination between domestic courts. This is defragmentation, a process which has the effect of limiting the excesses of the State and promoting the resolution of ‘collective action problems’ through systemically consistent solutions. Further, akin to the actions pursued by municipalities, the invocation of international law by domestic courts leads to the dissemination of information that provides the impetus for mobilisation. Pivotally, inter-court coordination is essential to the endeavour of a domestic court as it is unlikely for the jurisprudence generated by a singular court to have a reverberating impact on the system or to offer hope for overcoming ‘collective action problems’.
Illustrative of these arguments is the evidence of inter-court cooperation to overcome ‘collective action problems’ such as climate change, counter-terrorism, and refugee law by relaxing standing criteria, exploring instructional linkages between multiple rights, according priority to certain rights, and defining the amorphous in international law (Benvenisti 2008). As Kahraman, Kalyanpur, and Newman state,
‘[J]udges shape transnational law through dialogical lawmaking with their peers sitting at other domestic courts. This judicial dialogue among judges is an important pathway for the diffusion of legal norms. When interpreting new meanings into existing law, judges often consult the rulings of foreign courts and cite each other on myriad trans-border issues. Slaughter refers to this dialogical lawmaking process as “global jurisprudence.”’
Equally illustrative are decisions in which international law is invoked by the domestic court to enforce common international standards, providing the preliminary impetus for reiteration by other domestic courts. The domestic court’s decision to obligate the State to comply with the legal standards assented to in the realm of international environment law in State of the Netherlands v. Urgenda Foundation (see also, generally, Meguro 2020; Wewerinke-Singh and McCoach 2021), without modification on the basis of executive discretion, is a prime example. Similarly, in Kadi I and II, though the UN Security Council’s primacy to take measures to maintain international peace and stability was recognised, it was held that reviewing violations of certain fundamental guarantees held by the European community could not be excluded nor could these rights be guaranteed merely in form rather than in substance even in counter-terrorism efforts. It is evident from these examples that domestic courts ‘are not simply passive recipients of international law. They redefine what constitutes global law and are essential to how it unfolds in practice’ (Kahraman, Kalyanpur, and Newman 2020). In playing a determinative role in the interpretation and implementation of International Law, domestic courts can significantly influence the course of the lives of the individuals governed by International Law.
Much as with the arguments in favour of municipalities, despite the promise of inter-court coordination with respect to ‘collective action problems’, one cannot claim that domestic courts can single-handedly resolve them. With respect to domestic courts, a primary concern arises out of the resistance of national governments to action by domestic courts. Governments, who would prefer to retain their discretion, have begun to pre-empt inter-court cooperation and consequently begun to develop alternative means of regulating the issues to dilute the impact of such judgments. This was demonstrated, for instance, by the limitation of judicial review on counter-terrorism measures through the establishment of a Sanctions Committee pursuant to Chapter VII of the UN Charter. Concerns also arise about the variance in the value of judicial decisions, influence of a ‘narrow national outlook’, and the possible dismissal of inter-court cooperation as a governance instrument if the threat to the vitality of domestic courts is eliminated. Thus, a decision to accord importance to domestic courts as harbingers of solutions for ‘collective action problems’ should entail careful consideration of their powers and limitations as well as be situated within dialogue about harnessing the unique capabilities of multiple actors in harmonious ways.
The advent of globalisation has made the world more interdependent than ever before. ‘Collective action problems’ characterise the world as we know it today and necessitate coordinated action by multiple stakeholders. In this essay, I have attempted to focus on the potential of municipalities and domestic courts as emergent actors whose actions have catalysed (some) change regardless of resistance and which have begun to challenge embedded imaginaries of who acts in international law. As we map the developments in the responsibilities shouldered by these actors in a decentralising global order, discussions must not exclude difficult questions about their limits in order to conceptualise a truly diverse global order.
Image: NY Times (modified).