Breaking Free: Local Governments’ Boundary-Defying Engagement with Human Rights and Migration

Abstract

Local governments are not entities an international lawyer would usually think of as an “actor of international law”. In fact, they are considered irrelevant in classical international law, mere state organs whose actions can trigger the responsibility of the state, without any relevance of their own to boast. This thesis is a theoretical and empirical demonstration of why this is not true, even if we look from the lens of traditional, Westphalian international law. This thesis maps, in a manner grounded in empirical research in Turkey, Switzerland and the international arena, the different (both legal and socio-legal) ways in which local governments engage with human rights and migration, which are both traditionally considered fields of international law and thus outside the competence of local governments. Nonetheless, local governments (as well as the individuals within them; their local, regional, national and transnational networks; and other actors working closely with local governments) have formed a norm-generating community, participating in the multi-level processes of proposal, advocacy, contestation, dissemination and adoption of norms of human rights and migration. Perhaps most importantly for positive international law, this engagement of local governments has been seen to actually shape positive international law, for example in the process concerning the determination of the content of the right to adequate housing. This engagement of local governments in international law- and policy-making takes many forms. At times, local governments seek inclusion in traditional state-centric processes of international law- and policy-making. When this exclusion becomes too limiting however, they also take initiative and demonstrate fluency in international law by formulating their own norms and practices in local-centred fora, whether alone and with stakeholders in their localities or with peers in regional and transnational networks and conferences. Through the normative documents local governments produce, they seem to seek to influence global agenda-setting, contribute to rights-realisation and social justice at the local level, create toolkits for themselves that integrate fragmented pieces of international law into simpler singular documents, crystallise their interests and beliefs in a manner demonstrating competence and skill in international diplomacy, and find and rally allies around a common cause. Locally, in Turkey, many local governments have been found to engage in inclusive human rights and migration policies and practices even without clear obligations or competences to do so. My research found that this phenomenon was a result of the capacity of local governments (including personnel, data, budget, and level of institutionalisation); the cooperation initiated by actors such as international organisations, academia, city networks and civil society organisations; the dissemination of norms they have been exposed to; and political will. In addition, the context of high-demand, low-capacity, available foreign funds and know-how, and legal ambiguity seems to have created a fruitful environment for creative local government engagement – though it may not have been the most sustainable engagement. This contributed to a sense of agency local governments felt over their (albeit limited) competences and their activities in the fields of migration and human rights. Contrastingly, in Switzerland, the high-regulation context contributed to local governments distinguishing rigorously between different categories of rights-holders, having a lower perception of autonomy, being forced to engage in open legal battles over the limits of their competences, and taking up more formal venues of consultation, lobbying and conflict resolution. In conclusion, local governments constitute a normative community in human rights and migrations, legally and extra-legally, at the inter-personal, local, regional, national and transnational levels. Actors working towards justice and human rights should consider local governments an important partner, an invaluable forum for advocacy, creative and effective cooperation, and the cultivation of a human rights culture.