Oomen, Barbara

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The Next Step: Coupling City-zenshipto Human RightsBarbara Oomen 2020-01-28T09:00:00Reading through this fascinating collection of essays on city-zenship, it struck methat they seem to answer only one half of the question in the title of the forum:“Should urban citizenship be emancipated from national citizenship?” They focuson what city-zenship should decouple from (the nation state), but not on what itshould then be buckled up to. Here, I would like to argue that part of the answerlies in the international human rights framework for three reasons: (1) This is wherelocal authorities are already looking for inspiration; (2) the legal framework of humanrights offers an added value in meeting some of the underlying objectives of city-zenship; and (3) it could mitigate concerns legitimately raised in earlier contributions.Of course, such ‘glocal city-zenship’ does not only form a double portmanteau, butalso raises concerns that need to be addressed to attain the underlying objective:the recognition and realisation of the dignity and equal and inalienable rights of allpeople, in particular places.Why local authorities engage with human rightsThe local interest in the global becomes apparent, for instance, in human rightscities. The notion of such cities might immediately conjure up images of the brighthuman rights theme hall in Gwangju’s metro station, Barcelona’s City of Rightsprogramme or New York’s Human Rights Commission (Grigolo 2019) – thecosmopolitanism of global cities. However, when Sara Miellet searched the localcouncil minutes of all Dutch municipalities for reference to human rights, she alsoended up in the tiny ‘human rights hamlet’ of Tytsjerksteradiel that sought to combatexpulsion of Afghani families by reference to their human rights (Miellet 2019).Similarly, when the mayor of Grande Synthe (just as tiny) decided to take issue withthe French state for its neglect of migrants in the woods of Calais, he based hislawsuit on human rights. The boom in city networks might well fuel this trend towardslocal engagement with human rights. In seeking a normative basis to combat climatechange, promote inclusion, and enhance participation, cities transnationally oftenturn towards international or regional (like European) legal frameworks (Oomen2019). However, it also shows up in ‘small places’, without the resources to send civilservants to international conferences, although with the same type of commitment. Inall cases, it is enthusiastically fueled by international and supranational organisationslike the UN, the Council of Europe ,and the EU, which produce guidelines andreports on local authorities and human rights at an ever-accelerating pace.  Secondly, this increasing local interest in human rights makes sense because ofthe added value of this legal framework. In contrast to Prak’s understanding ofrights as mere morality, what local authorities engage with is a full-fledged bodyof law in which states have formally committed to the recognition of universal,- 1 -inalienable, and indivisible human rights. International human rights law has comea long way since the UDHR and its depiction as ‘nonsense on stilts’. Far frombeing a philosophical pipedream it now comprises well worked out civil, political,economic, social and cultural rights that women, children, the disabled and all otherhuman beings can formally invoke against the authorities committed to protectingthem. Such authorities often include local government. Just consider housing as anexample with strong local relevance: where the UDHR only spoke of the right to anadequate standard of living, subsequent treaties and their interpretation have led to arefined framework of adequate, affordable, and available housing. This increasinglyleads the Special Rapporteur on the matter to address local authorities directly.As such, human rights law, more than a homegrown discursive framework, offerslocal authorities a formal basis to develop inclusive policies, and all those presentin a municipality a basis to call for them. In addition, the international character ofthe framework enables local authorities to draw from experiences elsewhere, evenacross national borders (Accardo 2012, ICHRP 2005, UN 2015). It is not withoutreason that Dutch cities seeking to offer shelter to undocumented migrants, inviolation of national law, called European and international human rights law to theiraid (Baumgärtel 2019).Thirdly, an engagement with human rights can also help address many of thelegitimate concerns towards city-zenship raised in earlier contributions. Let usconsider the three main ones: unequal rights for urban and rural citizens (Lenard),the rise of ‘mean cities’ (Gargiulo and Piccoli) and the fraught relation with the nationstate (de Zanden, Aleinikoff). The moment when ‘pioneering’ local governmentsexplicate their responsibilities to protect, respect, and fulfil human rights law, theyalso set the standard (or better, raise the bar) for other local authorities in thecountry and beyond. Making explicit the responsibilities of a local government forhuman rights means that those who live in ‘mean cities’ can also invoke the rightsconcerned when their local government threatens to, for instance, exclude foreignersfrom the social housing stock or prohibit the use of other languages on shop signs(Ambrosini: 146). Finally, using the language of human rights means invoking a legalframework that the states concerned have adopted themselves. There are instancesof cities symbolically ratifying human rights treaties that the country concerned hasnot signed up to, as is the case with San Francisco and the Women’s ConventionCEDAW, but these are relatively rare (Lozner 2008). This means that the nationstate, if only on paper, has formally agreed to the normative framework which issubsequently mobilised in the local context.Challenges for global city-zenshipBefore the picture becomes too rosy, it is important to point out some of thedrawbacks of a glocal city-zenship (that is, one forged locally yet based oninternational human rights law). Many of these are the same as those raised incritical human rights studies and concern both the efficiency and the legitimacyof human rights. In reflecting upon this legitimacy, the  Middelburg mayor whom Iinterviewed last year sighed: ‘it might be better to start to talk about freedom. Humanrights seem so big, so alien, so distant to people’. Next, references to rights are notonly a legal matter but also identity-based, and can quickly result in cosmopolitan- 2 -city branding in conferences, festivals, art exhibitions with little tangible benefits forthose in need of protection (Oomen 2020, Roodenburg 2019). A third concern isthat human rights can be too vague and too broad for local policymaking. A fourthpossible concern that the international framework is not well-suited to local needsis enthusiastically addressed by all those local authorities lobbying for the inclusionof the Right to the City in the international framework. For all these reasons, clearexplication of local responsibilities under international human rights law is important,although even the most progressive local authorities are not always interested inthis, as their obligations then become much stronger.The contributions to this forum have raised important challenges for strengtheningcity-zenship – the need to address global challenges and secure equal rights ofresidents not merely in big cities, but in all municipalities, the fight against meancity policies, and the continued relevance of the nation state. When addressingthese concerns it seems compelling to make use of international human rights asone of the most logical, inclusive, established and worked out legal frameworksavailable. However, when doing so we, have to face some vexing issues. One isthe risk of a constitutional deadlock if local and international authorities have oneunderstanding of a city-zen’s rights, and the highest national authorities another.This, for instance, came up when some Spanish subnational authorities wantedto give all migrants access to health care and based this on international humanrights law (the International Convention on Economic, Social and Cultural Rights).The Spanish Constitutional Court nullified this attempt, stating that it threatened theequality of all Spaniards (Peralta et al. 2018). The U.N. Committee on Economic,Social and Cultural Rights, in turn, condemned such emphasis on uniform nationalsolutions “when they hinder” the progressive realisation of rights (CESCR, at 11).As local authorities, under international law, cannot ‘take their state to court’ theissue has to be resolved politically, at the national or international level (Oomen &Baumgärtel 2018).In sum, to quote Bauböck, we need a new citizenship narrative that is aboutmultilevel and transnational citizenship. Cities (and other local authorities) can playa key role in forging that narrative and ensuring that it works for each of us. In orderto be successful, however, this narrative should not be centred around the nation-state alone. For that reason, our forum might benefit from another title. Instead of‘Cities vs States: Should Urban Citizenship be Emancipated from Nationality?’ Iwould propose ‘The Local and the Global: How international human rights law canstrengthen city-zenship’.References• Accardo, A., Grimheden, J., & Starl, K. (2012). The case for human rights at thelocal level: a clever obligation? In W. Benedek (Ed.), European Yearbook onHuman Rights (Vol. 12, pp. 33-47). Vienna: NWV.• Ambrosini, M. (2013). ‘We are against a multi-ethnic society’: policies ofexclusion at the urban level in Italy. Ethnic and Racial Studies, 36(1), 136-155.- 3 -• Baumgärtel, M., & Oomen, B. (2019). Pulling human rights back in? Localauthorities, international law and the reception of undocumented migrants. TheJournal of Legal Pluralism and Unofficial Law, 51(2), 172-191.• Grigolo, M. (2019). The Human Rights City: New York, San Francisco,Barcelona. New York: Routledge.• ICHRP. (2005). Local Government and Human Rights: Doing Good Service.Versoix: IHRP.• Lozner, S. L. (2008). Diffusion of Local Regulatory Innovations: The SanFrancisco CEDAW Ordinance and the New York City Human Rights Initiative.Columbia Law Review, 104, 768-800.• Miellet, S. (2019). Human rights encounters in small places: the contestationof human rights responsibilities in three Dutch municipalities. Journal of LegalPluralism, 51(2), 213-232, doi:https://doi.org/10.1080/07329113.2019.1625699• Oomen, B., Davis, M., & Grigolo, M. (2016). Global Urban Justice: the Rise ofHuman Rights Cities. Cambridge: Cambridge University Press.• Oomen, B., & Baumgartel, M. (2018 ). Frontier cities: The rise of local authoritiesas an opportunity for international human rights law. European Journal ofInternational Law, 29(2), 607-630.• Oomen, B. (2019). Decoupling and Teaming up: The Rise and Proliferationof Transnational Municipal Networks in the Field of Migration. InternationalMigration Review, 0197918319881118.• Oomen, B. (2020). Cities of Refuge: rights, culture and the creation ofcosmopolitan city-zenship. In R. Buikema, A. Buyse, & A. C. Robben (Eds.),Cultures, Citizenship and Human Rights (pp. 121-136). Abingdon & New York:Routledge.• Peralta-Gallego, L., Gené-Badia, J., & Gallo, P. (2018). Effects ofundocumented immigrants exclusion from health care coverage in Spain. HealthPolicy, 122(11), 1155-1160.• Roodenburg, L. (2019). Urban approaches to human rights: tracking networks ofengagement in Amsterdam’s debate on irregular migration. The Journal of LegalPluralism and Unofficial Law, 51 (2), 1-21.- 4 -

The Next Step: Coupling City-zenship to Human Rights

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The Next Step: Coupling City-zenship to Human Rights

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