Law and the New Urban Agenda 2019058259, 2019058260, 9780367188733, 9780367188764

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A groundbreaking volume on the essential role that law, and law reform, plays in realizing the promise of the New Urban Agenda. The contributors bring to the forefront the different challenges that cities and their leaders face as they endeavor to incorporate more robust citizen participation, protect human rights, sustainably develop to meet the demands of urban migration, and prepare for climate change and other threats to the health and safety of their communities. The range of contributors and the various regions they represent is a strength of the volume and renders it an indispensable starting place for appreciating the legal dimensions of the ambitious New Urban Agenda. – Sheila R. Foster, Scott K. Ginsburg Professor of Urban Law and Public Policy, Georgetown University Law Center Law and the New Urban Agenda underscores the value of urban law as a discipline in supporting the healthy development of inclusive cities for all. This timely volume sheds light on the many complex challenges that urban growth poses for legal systems around the globe, and I commend this eclectic group of scholars for their engagement with the New Urban Agenda. – Maimunah Mohd Sharif, Executive Director, UN-Habitat

Law and the New Urban Agenda

The New Urban Agenda (NUA), adopted in 2016 at the United Nations Conference on Housing and Sustainable Urban Development (Habitat III) in Quito, Ecuador, represents a globally shared understanding of the vital link between urbanization and a sustainable future. At the heart of this new vision stand a myriad of legal challenges – and opportunities – that must be confronted for the world to make good on the NUA’s promise. In response, this book, which complements and expands on the editors’ previous volumes on urban law in this series, offers a constructive and critical evaluation of the legal dimensions of the NUA. As the volume’s authors make clear, from natural disasters and resulting urban migration in Honshu and Tacloban, to innovative collaborative governance in Barcelona and Turin, to accessibility of public space for informal workers in New Delhi and Accra, and power scales among Brazil’s metropolitan regions, there is a deep urgency for thoughtful research to understand how law can be harnessed to advance the NUA’s global mission of sustainable urbanism. It thus creates a provocative and academic dialogue about the legal effects of the NUA, which will be of interest to academics and researchers with an interest in urban studies. Nestor M. Davidson is the Albert A. Walsh Chair in Real Estate, Land Use and Property Law at Fordham Law School, and Faculty Director of the Fordham Urban Law Center. Professor Davidson has published widely in the fields of urban law, state and local government, property, and affordable housing. Professor Davidson practiced with the firm of Latham and Watkins and served as Deputy General Counsel at the U.S. Department of Housing and Urban Development. Professor Davidson earned his AB from Harvard College and his JD from Columbia Law School. Geeta Tewari is the Director of the Fordham Urban Law Center. Tewari has practiced with the New York City Law Department and the Washington D.C. Office of the Attorney General, and also holds a Master of Fine Arts in Writing from Columbia University. Her literary work has appeared in Granta magazine, New England Review, and other publications. She is a member of the New York Women’s Bar Association’s Advancing the Status of Women Committee and manages the Urban Law Center’s Women in Urban Law Leadership Initiative. In 2020, she will join the faculty of Widener University Delaware Law School as Assistant Professor of Law.

Juris Diversitas Series Editor: Ignazio Castellucci University of Teramo, Italy Editorial Board: Olivier Moréteau – Louisiana State University, US Lukas Heckendorn Urscheler – Swiss Institute of Comparative Law, Switzerland Salvatore Mancuso – University of Palermo, Italy Christa Rautenbach – North-West University, Potchefstroom, South Africa Emmanuel Didier – Avocat and Attorney at law; Docteur d’État en Droit Series Advisory Board: Philip Bailhache – Jersey, UK Sue Farran – Northumbria, UK Marie Goré – Pantheon-Assas (Paris 2), France Werner Menski – SOAS, London, UK (Emeritus) Esin Örücü – Glasgow, UK (Emeritus) Vernon Valentine Palmer – Tulane, US Rodolfo Sacco – Turin, Italy (Emeritus) William Twining – University College London, UK (Emeritus) and Miami, US Jacques Vanderlinden – Free University of Brussels, Belgium (Emeritus) and Moncton, Canada (Emeritus)

Rooted in comparative law, the Juris Diversitas series focuses on the interdisciplinary study of legal and normative mixtures and movements. Our interest is in comparison broadly conceived, extending beyond law narrowly understood to related fields. Titles might be geographical or temporal comparisons. They could focus on theory and methodology, substantive law, or legal cultures. They could investigate official or unofficial ‘legalities’, past and present and around the world. And, to effectively cross spatial, temporal, and normative boundaries, inter- and multi-disciplinary research is particularly welcome. Other titles in this series: Normative Pluralism and Human Rights Social Normativities in Conflict Edited by Kyriaki Topidi Global Perspectives in Urban Law The Legal Power of Cities Edited by Nestor M. Davidson and Geeta Tewari Law and the New Urban Agenda Edited by Nestor M. Davidson and Geeta Tewari For more information about this series, please visit: www.routledge.com/JurisDiversitas/book-series/JURISDIV

Law and the New Urban Agenda

Edited by Nestor M. Davidson and Geeta Tewari

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 selection and editorial matter, Nestor M. Davidson and Geeta Tewari; individual chapters, the contributors. The right of Nestor M. Davidson and Geeta Tewari to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Davidson, Nestor M, editor. | Tewari, Geeta, editor. Title: Law and the new urban agenda / edited by Nestor M. Davidson and Geeta Tewari. Description: Abingdon, Oxon ; New York, NY : Routledge, 2020. | Series: Juris diversitas | Includes bibliographical references and index. Identifiers: LCCN 2019058259 (print) | LCCN 2019058260 (ebook) | ISBN 9780367188733 (hardback) | ISBN 9780367188764 (ebook) Subjects: LCSH: City planning and redevelopment law. | United Nations Conference on Housing and Sustainable Urban Development (3rd : 2016 : Quito, Ecuador). New urban agenda. Classification: LCC K3531 . L39 2020 (print) | LCC K3531 (ebook) | DDC 346.04/5—dc23 LC record available at https://lccn.loc.gov/2019058259 LC ebook record available at https://lccn.loc.gov/2019058260 ISBN: 978-0-367-18873-3 (hbk) ISBN: 978-0-367-18876-4 (ebk) Typeset in Galliard by Apex CoVantage, LLC

For Clare, Zoe, and Sam ND For Avanti, Uma, and Livia GT

Contents

List of figures List of contributors Acknowledgments Introduction

xi xii xvi xvii

N ES TO R M . D AVIDS O N A ND GEETA T EWA RI

Preface

xxi

RO B ERT LEW IS -L ET T INGT O N A ND A NNE KL E N- AMIN

PART I

The New Urban Agenda in the institutions and structures of urban law 1 The New Urban Agenda, effective national policies, and legislation

1

3

M ARI A M O U S MO U T I

2 Financing the New Urban Agenda

15

M ATTH EW D . GL A S S ER

3 The New Urban Agenda, metropolitan challenges, and municipal autonomy in Brazil

34

L I L I AN RE G I NA GA BRIEL MO REIRA P IRES

4 The role of law in relation to the New Urban Agenda and the European Urban Agenda: a multi-stakeholder perspective

49

CH RI S TI AN I AIO NE A ND EL ENA DE NICT O L IS

5 The New Urban Agenda and local citizen participation: the Spanish example F RAN CI S CO V EL A S CO A ND CA RMEN NAVA RR O

74

x Contents 6 Cities, data, and the New Urban Agenda

87

B EATRI Z B O T E RO A RCIL A

PART II

Urban form and inclusion at the nexus of law and the New Urban Agenda 7 Human rights in the New Urban Agenda: towards inclusive urban planning

103

105

AN N E KL EN - A MIN A ND RA S H ID A BU BA KA R

8 Does the New Urban Agenda provide a stable legal framework for property rights and land use law?

118

M ARTA L O R A - TA MAY O VA L LVÉ

9 Shifting paradigms from between the lines? Legal internalizations of the right to adequate housing in South Africa

131

M ARI U S P I ET E RS E

10 Social inclusion and the New Urban Agenda: street vendors and public space

145

M ARLES E VO N BRO EMBS EN

11 Lessons from post-disaster shelter policy for the New Urban Agenda

163

CH I EN - Y U LI U

12 The challenges of urban mobility regulation and the New Urban Agenda

174

AN D RÉS BO I X -PA L O P

Index

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Figure

8.1

Diagram of the New Urban Agenda analyzed within the concentric circle theory

128

Contributors

Rashid Abubakar is a legal researcher specializing in environmental law, urban planning, and land use law. He has previously worked as a junior urban law consultant for UN-Habitat and is currently a consultant with UN-Environment, where he is tasked with assessing the extent to which legal frameworks include climate change considerations within urban planning processes. Abubakar holds a bachelor’s degree in law from the University of Nairobi and is pursuing a master’s degree in International Environmental Law with a focus on Climate Change Law. Beatriz Botero Arcila received her LLB from Universidad de los Andes in Bogotá, Colombia and her LLM from Harvard Law School. She is an SJD candidate at Harvard Law School and a fellow at the Berkman Klein Center for Internet and Society at Harvard University. Her dissertation studies the regulation of platform-based technologies and data by local governments. Andrés Boix-Palop is Public Law Senior Lecturer at the University of València, where he teaches administrative law in different graduate and post-graduate degree programs. He has written and edited books and articles both on urban mobility and the regulation of the sharing economy. He supervises the University of València Research Group in Economic Regulation and the Jean Monnet Network SHINE, funded by the European Commission, which gathers research and other academic activities about regulation of the sharing economy and inequality. Elena De Nictolis is a post-doctoral research fellow at the Department of Political Science of LUISS University where she conducts research on urban policies on co-governance and urban commons and city diplomacy within LabGov Luiss. Matthew D. Glasser serves as a consultant to governmental and multilateral agencies and is the Director for Municipal Law and Finance at the Centre for Urban Law and Finance in Africa (CULFA). One focus of his current work is building the research, policy development, and policy implementation capacities of the intergovernmental relations staff in South Africa’s National Treasury. Glasser holds a juris doctor degree in law from Cornell University and a master’s degree in business from the University of Colorado.

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Christian Iaione is a professor of urban law and policy, land use and regulatory innovation at Luiss Guido Carli, as well as a faculty co-director of LabGov Luiss and BILL – Blockchain, Artificial Intelligence and Digital Innovation Law Lab. He is also an affiliated fellow of the Fordham Urban Law Center and co-director of LabGov at Georgetown University. Anne Klen-Amin is a programme management officer at the Urban Legislation Unit, UN-Habitat, with twenty years of international professional experience in research and knowledge management, technical assistance in legislative processes, capacity building, and academic partnerships. Her areas of expertise include urban governance, physical planning law, and human rights. KlenAmin holds a master’s degree in law from the University of Helsinki, Finland, with a specialization in international tax law and a Maîtrise de droit in international law from the University of Paris VIII, France. Robert Lewis-Lettington is Chief of the Urban Legislation Unit at UN-Habitat and Secretary to the Drafting Committee of the UN-Habitat Assembly. He has twenty years’ professional experience, primarily working in multilateral processes and in providing technical assistance in policy formulation and legislative processes to a variety of partners. With field experience in more than fifty countries, his specialist areas include legislative drafting, urban development, intellectual property rights and information management, digital governance, environment and natural resources, international trade, and human rights. He was Vice Chair of the International Telecommunication Union’s focus group on ‘Data Processing and Management to Support the Internet of Things and Smart Cities & Communities.’ He is also a Salzburg Global Fellow in Law and Technology, a member of the International Law Association, and a member of the Human Rights Lawyers Association (UK). Lewis-Lettington holds a juris doctor degree in law from the College of William and Mary (USA), an MA (Hons) degree specializing in architectural history from the University of St. Andrews, and an MLitt (Dist.) degree in history from the University of the Highlands and Islands. Chien-yu Liu is a jurist and communicator specializing in legal and policy implications of disaster displacement, forced migration, gender, and the humanitarian-development nexus. Dr. Liu obtained an S.J.D. (Doctor of Juridical Science) from Georgetown University Law Center and a certificate in Refugee and Humanitarian Emergencies from the Institute for the Study of International Migration (ISIM) of Georgetown University. Dr. Liu’s research interests also include the intersections of access to justice, transgender equality, urban, and social vulnerability issues. Maria Mousmouti is Lecturer at the Institute of Advanced Legal Studies (IALS) of the University of London and Executive Director at the Centre for European Constitutional Law, a research center based in Athens, Greece. Her research in the field of legislative studies focuses on the concepts of legislative quality and effectiveness, legislative design and mechanics, and their application in different areas of law. She has coordinated the Urban Law Initiative,

xiv Contributors a research cooperation between the Sir William Dale Centre for Legislative Studies at IALS and UN-Habitat that promotes research, generates knowledge, and improves the quality of urban legislation in countries around the world since its inception in 2013. For many years, her work has supported legislative and policy reform initiatives through research, evidence-based advice, and capacity building in more than twenty countries in the EU, Southern Europe, the Middle East, Africa, and Central Asia. Carmen Navarro is Associate Professor at the Department of Political Science, University Autónoma of Madrid, where she focuses her research and teaching activities on local government and public policy. She has served as Vice Dean for International Relations at the Faculty of Law and as Head of its Department of Political Science. She is a part of international networks for research on local politics, local political leaders, local government reforms, and local policies. She has been a visiting scholar at the Public Policy Institute, Georgetown University, Institute d'Études Politiques Bordeaux, Department of Political Science, Boston College and at the Centre for Urban and Public Policy Research, School for Policy Studies, Bristol University. Marius Pieterse is a professor of law at the University of the Witwatersrand in Johannesburg, South Africa, where he teaches constitutional law and human rights law. His research focuses on the relationship between urban governance, constitutional law, and the enforcement of human rights through litigation. He is the author of Rights-based Litigation, Urban Governance and Social Justice in South Africa: The Right to Joburg (Routledge, 2017) and Can Rights Cure? The Impact of Human Rights Litigation on South Africa's Health System (Pretoria University Law Press, 2014). Lilian Regina Gabriel Moreira Pires is an administrative and urban law professor at Mackenzie Presbyterian University – School of Law, and President of the Urban Law Commission of the Brazilian Bar Association – São Paulo section. She is also a member of the concessions committee at the Metropolitan Transportation Department in the State of São Paulo and coordinator of the extension program MackCidade. She earned her master’s degree in state law from Mackenzie Presbyterian University, and her PhD, with an emphasis in urban law, from the Pontifical Catholic University of São Paulo (PUC-SP). Marta Lora-Tamayo Vallvé is a professor in the administrative law department of Catedrático de Universidad, National University of Distance Education (UNED). Her teaching and research focus is on urban law from a historical and comparative perspective. She wrote her doctoral thesis on urbanism of public works and the right to urbanize (Marcial Pons 2002). She has written numerous research articles and individual monographs on public policies, both from the local and comparative perspectives, expanding the thematic range of analysis. She is a member of the Planning Law and Property Rights Association (PLPR), head of the National College of Urban Jurisprudence

Contributors

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(CNJUR) in Europe, head of the International Platform of Experts in Planning Law, and a member of the Academic Council of the City Institute. Francisco Velasco is a professor of administrative law and Director of Research at the Institute for Local Government Law at the Autonomous University of Madrid. He currently is a member of the steering committee of the European Union research project “Local Government and the Changing Urban-Rural Interplay” (2019–2023). Marlese von Broembsen is the Law Programme Director of Women in Informal Employment: Globalizing and Organizing (WIEGO). She holds law degrees from the University of Cape Town and Harvard Law School and an MA in development studies from the University of the Western Cape. Prior to joining WIEGO, von Broembsen was a senior lecturer in the Faculty of Law, University of Cape Town, where she convened an interdisciplinary master’s programme in social justice. She was also an adjunct faculty member of Northeastern Law School (USA) in 2017, where she taught a course on law and development. von Broembsen is a recipient of a Harvard South Africa Fellowship (2014); a David and Elaine Potter Research Fellowship for contribution to civil society (2014, 2015), and a recipient of a National Research Foundation Innovation Scholarship (2014). From August 2015–December 2017, she was a visiting researcher at the Institute for Global Law and Policy (IGLP), Harvard Law School. Von Broembsen writes on labour law and development, transnational regulation of global value chains, and on homeworkers.

Acknowledgments

Our thanks and appreciation go to the Urban Law Center’s student fellows, especially Emma DeCourcy, Quinn D’Isa, Anna Gregg, Hema Lochan, Carolyn McGuigan, and Stephanie Salomon, for their assistance in the preparation of this volume. Sincere gratitude and recognition must also be given to Robert Yasharian, Fordham Law School’s senior designer, for the cover of this book. Additionally, we wish to thank the participants in the annual International and Comparative Urban Law Conferences and our UN-Habitat partner colleagues for inspiring the dialogues that led to this book. Lastly, the editorial and publishing staff at Routledge, all of whom shepherded this book to press – thank you for continuing to bring urban legal research and ideas to the world.

Introduction Nestor M. Davidson and Geeta Tewari

The New Urban Agenda (NUA), adopted at the United Nations Conference on Housing and Sustainable Urban Development (Habitat III), in Quito, Ecuador on October 20, 2016, represents a globally shared understanding of the vital link between urbanization and a sustainable future. So much of what the NUA seeks to achieve in the Global South and around the world requires the engagement of legal systems and a deep understanding of the role of law in every aspect of the shape and life of cities. To advance our understanding of these dynamics, Law and the New Urban Agenda – the third volume in the Juris Diversitas Global Perspectives on Urban Law series – offers a constructive and critical evaluation of the legal dimensions of the NUA. As the volume’s authors make clear, from natural disasters and resulting urban migration in Honshu and Tacloban, to innovative collaborative governance in Barcelona and Turin, to accessibility of public space for informal workers in New Delhi and Accra, and power scales among Brazil’s metropolitan regions, there is a deep urgency for thoughtful research to understand how law can be harnessed to advance the NUA’s global mission of sustainable urbanism. In the volume’s Preface, Anne Klen-Amin and Robert Lewis-Lettington, of UN-Habitat’s Urban Legislation Unit, outline the NUA’s essential connection to legal and institutional frameworks, focusing on four specific areas – equity and governance; planning, land, and environment; housing and basic services; and economy and finance. They urge reading the NUA alongside the Sustainable Development Goals (SDGs) adopted under the U.N.’s 2030 Agenda for Sustainable Development (2030 Agenda) as a map for analyzing ways to emphasize the need for sustainable and systemic change far beyond the 2030 deadline. The chapter contributions in this volume each touch on the NUA’s connection to legal and institutional frameworks in different ways and in different regions of the world. We have organized these contributions into two parts to emphasize the implementation of the NUA from both macro and micro perspectives. Part I centers on how the NUA is reflected in the legal-institutional structures of urban governance, while Part II takes a closer look at the NUA’s implications for communities locally around urban planning, land use, housing, public space, post-disaster resiliency, and urban mobility.

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To open Part I, Maria Mousmouti argues in The New Urban Agenda and effective national policies and legislation that the NUA is a “soft law instrument” that establishes rules and benchmarks for assessing both national and international policies. She notes that despite the document’s well-meaning intentions, it lacks “teeth” to create binding effect. In turn, she questions the enforceability and accountability of the NUA, setting out insights and reservations which, in the chapters to follow, some echo, some counter, and others offer solutions for, with case studies from urban environments across the globe. In Financing the New Urban Agenda, Matthew D. Glasser next evaluates the NUA’s emphasis on financing, noting that the word “finance” is referenced more than fifty times throughout the document, a vast improvement from previous declarations. Land use planning and regulation, public sector revenue and expenditure choices, and private investments and decisions all affect urban outcomes in various forms. Glasser explains that outcomes will vary given power, spending, and revenue choices at the local, national, and international levels, and the dynamic between each of these structurally and politically. In The New Urban Agenda, metropolitan challenges and municipal autonomy in Brazil, Lilian Regina Gabriel Moreira Pires argues that advancing dignity and a guarantee of basic rights for citizens requires cooperation among power scales at the national, regional, and local levels. She notes that more than half of Brazil’s metropolitan population lives in a small concentration of its municipalities. “For the first time in Brazilian constitutional history, the municipality has been elevated to the category of federated entity,” Pires writes, requiring a distribution of competences and attention to local interests and common services. She notes that these common services are supported by the NUA and its encouragement for dialogue and cooperation across levels of government. “[G]overnance is a means to break the imbalance of political power,” Pires concludes, “[to] directly affect people’s quality of life.” In their chapter on the Urban Agenda for the European Union (EU), Elena De Nictolis and Christian Iaione examine the possibilities for collaboration across communities, governments, and private entities to achieve the common goals of the NUA and the Urban Agenda for the EU. The authors discuss how co-governance models can foster sustainable long-term urban development in an era of increasing urban migration, citing “concrete support” and “collaborative dialogue” as mechanisms to aide public administrations amenable to new partnerships with both private and social sectors. Analyzing the Urban Agenda for the EU’s Thematic Partnerships, particularly on housing innovative and responsible public procurement, they provide fascinating case studies such as Barcelona’s “co-housing program” and Turin’s Co-City project, a “collective action for urban commons,” to demonstrate how public-private-community partnerships can create urban innovation. In their chapter on local citizen participation and Spanish law and policy, Francisco Velasco and Carmen Navarro emphasize the importance of citizen participation in a government’s decision-making powers. They outline the NUA’s call for citizen participation as essential for local governments and explain that the

Introduction xix Constitution and the Spanish Local Government Act can serve as models for how legal frameworks might be organized in pursuit of public participation and more inclusive policies and plans. Referencing political movements and new parties such as Podemos, meaning “we can,” the authors also stress the power of public mobilization in pursuit of jobs, homes, and other basic citizen needs. Cities, data, and the New Urban Agenda by Beatriz Botero Arcila asks important questions about how digital technologies and data collection can transform key economic, social, and governmental aspects of cities. With Barcelona, Spain’s Digital Plan and the Cities Coalition for Digital Rights as examples, she proposes that participatory democracy, inclusion, and privacy protections will each assist in building legal frameworks for data application in furtherance of the NUA’s goals. Botero Arcila stresses that the limits of city power in relation to data, particularly in cities of the Global South, which stem from inequality and potential conflict between other levels of government, need to be realistically addressed. She offers institutionalized legal frameworks for digital technology as a solution. To commence Part II, UN-Habitat’s Urban Legislation Unit revisits its discussion of the NUA’s emphasis on human rights and inclusivity in Human rights in the New Urban Agenda: towards inclusive urban planning. The chapter’s authors, Anne Klen-Amin and Rashid Abubakar, emphasize “the importance of setting minimum standards required for people to live in freedom, equality, and dignity.” To achieve sustainable and inclusive urban development, Klen-Amin and Abubakar propose a paradigm shift in the way urban areas are planned, explaining that presently urban planning law “undermines” human rights. Instead, they argue for an “Essential Law” approach to identify necessary standards of health and safety and develop practical responses. Marta Lora-Tomayo Vallvé analyzes how the NUA may provide legal frameworks for property rights and land use law. Vallvé offers the concentric-circle theory, first outlined in Spanish law 8/2007, as a mechanism to understand and apply the NUA to property rights, development rights, and citizenship rights. She provides a diagram indicating specific paragraphs within the NUA that correspond to each of these rights and their respective hierarchy within the theory. She notes that because the right to urbanize is not “fully contemplated or defined in the NUA,” the three layers of the theory assist in parsing out the importance of this right, as well as the social and ecological functions of property rights, which must be essential to any new urban legal frameworks. In Shifting paradigms from between the lines?, Marius Pieterse poses this question: What are the NUA’s and SDGs’ relationships to countries’ “binding law[s]”? Concentrating on the South African constitution and the corresponding evolution of the country’s housing law and policy, he reflects that it will take “more than the NUA’s assumptions of legal compliance and subtle suggestions . . . to get domestic legal systems to embody and operationalize all interrelated dimensions of the ‘urban paradigm shift.’” Pieterse leads us to critically ask how we can ensure that the NUA is applied and enforced for a sustainable future in urbanization.

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In Social inclusion and the New Urban Agenda: street vendors and public space, Marlese von Broembsen first points out that two billion members of the global workforce are informally employed. In order for the NUA’s vision for social inclusion to come to fruition, she contends, access to public space must include “urban dwellers whose livelihoods are contingent on [this] access to . . . trade.” Von Broembsen discusses case studies in India and Africa where street vendors have negotiated for participation in decision-making at a local level through mechanisms such as organizing or contracts, and describes how organizations such as the National Association of Street Vendors of India have sought to change the narrative regarding street vending from “public nuisance” to social and economic value. Chien-yu Liu dives into important and challenging territory: urban planning and its response to natural disasters. With the rapid advent of climate adaptation, natural disasters are increasing. Liu focuses her perspective to post-disaster shelter and relocation policies in Japan and the Philippines, particularly in response to natural disasters including the 2011 Tohoku earthquake and the 2013 Typhoon Haiyan. She emphasizes the fundamental need, especially in urban and peri-urban populations, for an international organization mandated to address assistance, particularly for persons uprooted within or to urban areas. Finally, Andrés Boix-Palop’s chapter on the challenges of urban mobility regulations highlights the importance of addressing urban mobility and metropolitan transportation systems from a holistic perspective. This includes addressing issues of sustainability and urging governments to consider environmental issues, congestion problems, and social inequality in shaping urban transportation regulation. He points to the NUA as a guide to the essential value of urban mobility and transportation as fundamental elements of a working city. In editing this volume, we have been struck by how varied urban law is – covering among its many facets the environment, housing, land use, employment, data privacy, finance, and transportation, among other vital aspects of the life of cities – and the many connections to different layers of governance and co-governance at global, national, and, especially, local levels. The diverse chapters in this volume reflect this urban complexity, serving as a springboard for a new discourse about the NUA. Ultimately, the dialogue this volume advances can help answer an urgent question for policymakers, legal scholars, and everyone invested in the need for sustainable urbanism: how can cities better use law to build the future the NUA calls for?

Preface Robert Lewis-Lettington and Anne Klen-Amin

The New Urban Agenda (NUA) is an action-oriented document about people, the planet, prosperity, peace, and partnerships in urban settings. It was adopted at the United Nations Conference on Housing and Sustainable Urban Development (Habitat III), held in Quito, Ecuador in October 2016, and endorsed by the General Assembly on 23 December 2016.1 The 2030 Sustainable Development Agenda (2030 Agenda) is the globally agreed-upon roadmap for universal efforts to achieve sustainable development: that is, development that meets the needs of the present generation without compromising those of future generations. The NUA provides greater detail on how to achieve the urban dimensions of the 2030 Agenda. It relates not only to Goal 11, ‘Make cities and human settlements inclusive, safe, resilient and sustainable’, but also to more than half of the other targets and indicators in the 2030 Agenda that have an urban dimension.2 The 2030 Agenda provides a clear framework for addressing the challenges of urban law. Goal 11 is the obvious foundation and is no different than any other structure of rights or policies: legal and institutional frameworks are basic to delivery on the ground, whether in terms of establishing benchmarks, creating accountability, empowerment, or the identification and allocation of resources. However, Goal 11 cannot simply be seen as a neutral set of technical objectives to be delivered. It exists within a social and political context that must be accounted for if it is to succeed. Therefore, to create the greatest benefit for those most in need, Goal 11 must be implemented jointly with Target 10.3, to ‘[e]nsure equal opportunity and reduce inequalities of outcome, including by eliminating discriminatory laws, policies and practices and promoting appropriate legislation, policies and action in this regard’;3 and Target 16.6, to ‘[d]evelop effective, accountable and transparent institutions at all levels’.4 The NUA does not repeat these explicit demands for strengthened legal and institutional frameworks. If not read alongside the 2030 Agenda, the NUA’s implicit treatment of law risks emphasizing shorter-term project outcomes when what is really required is sustainable and systemic change. The need for law reform in the NUA falls into four broad areas: i) Equity and Governance ii) Planning, Land, Environment

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iii) Housing and Basic Services iv) Economy and Finance The impact of legislation is important: good law and institutions can set meaningful frameworks for sustainable development, but bad ones can accentuate inequalities and exclusion. Urban space is complex, containing the majority of the world’s people and of its economic activity. The global urban population has grown from 732 million in 1950 to more than 4 billion in 2018,5 transforming cities into engines of economic growth, as well as social and cultural development, but also presenting numerous challenges on their abilities to satisfy the needs of their inhabitants. Urban law is necessary to provide a framework of rules to mediate and balance competing public and private interests. It defines conditions for access to land, infrastructure, housing, and basic services and lays out rules for planning, decision making, and participation. It guides the improvement of livelihoods and living conditions by setting requirements for urban development initiatives, and it sets the context within which urban authorities and communities are expected to fulfil their mandates, react to emerging challenges, and be held accountable. Quality urban law creates a stable and predictable framework for both public and private sector action, guaranteeing the inclusion of the interests of vulnerable groups, and providing a catalyst for local and national discourse. The mere existence of urban legislation is not enough for effective urban management and development. Legislation is often perceived to generate more problems than those it actually solves. The review of several legal frameworks and the experience of UN-Habitat projects in many countries show that urban law, particularly urban planning law and municipal finance law, is perhaps one of the least effective areas of law in practice. ‘Effectiveness’ refers to the capacity of a given law to fulfill its declared or intended function. Many urban laws, particularly around spatial planning and municipal finance, have the characteristics of what is colloquially referred to as ‘zombie’ legislation: it is on the books and can be a trap but is, for most practical purposes, not implemented and dead. UNHabitat’s experience highlights a widespread popular perception that this occurs because the law is good, but the resources and capacity aren’t there to make it work.6 UN-Habitat challenges that perception on two basic grounds. First, can the definition of good hold, if the legal instrument in question has no meaningful impact? Second, if the resources and capacity required to make the law work have not existed, why is that situation likely to change? Law must be judged by its impact; it must be appropriate to its context and it must be proportionate to its objectives. The ineffectiveness of urban law predominantly derives from structural weakness. Structural in the sense that the challenge lies more in the technical and political order that develops urban law and is a question of the systematic perpetuation of that order, rather than in the way that people interact with these laws after they have been developed. Weakness in the sense that there are major challenges with the policy direction of urban law and in that it is generally poorly designed from conception through formulation and into implementation and

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monitoring. We often design laws and institutions badly, and that means that we design them to fail. Since the adoption of the NUA, many urban challenges have intensified. Growing inequality, social exclusion, and spatial segregation continue to have an impact on people’s lives in most of the world’s cities. Housing remains largely unaffordable in both the developing and the developed world. Globally, 1.6 billion people live in inadequate housing, of which approximately 1 billion live in slums and informal settlements lacking basic services. All of these forms of exclusion disproportionally affect women, youth, older persons, migrants, and other vulnerable groups. Unsustainable models of urbanization persist, including informal and unplanned urban growth, that consume excessive land and energy and damage the environment. Nevertheless, many cities remain as places of innovation, social change, and prosperity. With the adoption of the NUA, the international community agreed that urbanization could be a driver of positive change with the aspiration to leave no one and no place behind. The NUA is the framework to integrate and elevate the vital role that cities must play in decision-making and realizing development transformations. Urban legislation has an important role to play by defining conditions for access to land, infrastructure, housing, basic services, and setting the context within which urban authorities, local governments, and communities are expected to fulfill their mandates and react to emerging challenges. It is important to highlight that governments face various challenges in the implementation of the NUA and the urban dimension of the 2030 Agenda. Such challenges include low levels of awareness regarding the potential benefits of urbanization and of urban-related commitments made in global development agendas. National and local authorities face further challenges, such as low institutional and fiscal capacity, lack of development financing, and weak multilevel governance structures and multi-stakeholder partnerships. Some fundamental shifts are required, particularly in low-income countries where capacity and relevance remain major challenges for legal systems that are often characterized by urban planning models and land tenure and administration systems that are imported in part, or even in whole, from other jurisdictions. The outcome document of the United Nations Conference on Housing and Sustainable Urban Development (Habitat III) calls for a periodic review to ensure coherence at the national, regional, and global levels to track progress, assess impact, ensure effective and timely implementation of the NUA, as well as to create and reinforce partnerships and foster exchanges of urban solutions and mutual learning. Five Quadrennial Reports will take stock of the progress made and challenges faced in the implementation of the NUA, identifying further steps to address. The first report was presented to the General Assembly in 2018. To help direct support, to encourage all Member States, and to monitor progress, the law and policy community’s engagement with the NUA’s Quadrennial Report process will be important. Promoting equality of outcome and institutional sustainability as central to this process will be influential to the results, as policy adapts to the reporting framework and global discourse. The time frame

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to achieve the goals of the 2030 Agenda is very short – we only have eleven years to go. Structural changes such as legal systems must happen soon if we are to achieve effectiveness and sustainability by 2030. Without the guarantees of inclusion, consistency, and sustainability that only legal and institutional changes can provide, the NUA and the Sustainable Development Goals as enunciated in the 2030 Agenda will be out of reach. This publication, therefore, comes at a critical juncture in the discourse on urbanization. It brings together a diverse team of international scholars representing both developed and developing countries with a range of urban challenges and opportunities. By examining the components of the NUA and reflecting on its strengths and weaknesses in terms of its interaction with the legal systems, it offers a refreshing contribution on the implementation of the NUA and underscores the role of the law and policy community in promoting sustainable and inclusive urban areas.

Notes 1 See generally G.A. Res. 71/256*, annex, New Urban Agenda (Dec. 23, 2016). 2 Goal 11: Make Cities Inclusive, Safe, Resilient and Sustainable, THE UNITED NATIONS, www.un.org/sustainabledevelopment/cities/ (last visited Sept. 26, 2019). 3 Goal 10.3: Ensure Equal Opportunity and Reduce Inequalities of Outcome, Including by Eliminating Discriminatory Laws, Policies and Practices and Promoting Appropriate Legislation, Policies and Action in This Regard, THE UNITED NATIONS, www.un.org/sustainabledevelopment/inequality/ (last visited May 26, 2019). 4 Goal 16.6: Develop Effective, Accountable and Transparent Institutions at All Levels, THE UNITED NATIONS, www.un.org/sustainabledevelopment/peace-justice/ (last visited May 26, 2019). 5 U.N. Department of Economic and Social Affairs, 2018 Revision of World Urbanization Prospects (2018). 6 U.N. Human Settlements Programme, World Cities Report 2016 – Urbanization and Development: Emerging Futures, at 3 (2016).

Part I

The New Urban Agenda in the institutions and structures of urban law

1

The New Urban Agenda, effective national policies, and legislation Maria Mousmouti

The New Urban Agenda in the twilight between law and politics International instruments are an important governance tool. In their traditional version they take the form of legally binding treaties or conventions, known as ‘hard’ law. The last decades have witnessed the emergence of a large variety of instruments of ‘soft’ law with a persuasive (rather than coercive), aspirational and declaratory nature that focuses on vision and consensus-building and sets common goals or commitments rather than binding rules. Soft law instruments encompass a range of documents such as resolutions and declarations of the U.N. General Assembly, statements, principles, codes of practice, action plans and agendas and other non-treaty obligations. The (academic) controversy around them is associated with their (unclear) legal status, their legitimacy, typology, the situations that produce them, and most importantly, their effects and the nature of obligations (if any) that arise from them. From a pragmatic perspective, soft law instruments are a new governance tool,1 functionally equivalent to international treaties that reflect the compromises required in international governance2 and demonstrate the need for flexibility where there is no clear ground or consensus for common rules.3 The New Urban Agenda (NUA) is a textbook example of a ‘soft’ instrument. Adopted at the U.N. Conference on Housing and Sustainable Urban Development (Habitat III) in Quito, Ecuador, on 20 October 2016 and endorsed by the U.N. General Assembly on 23 December 2016, it declares itself to be a forwardlooking document and a ‘key instrument’ representing a shared vision for a better and more sustainable future ‘enabling national, subnational and local governments and all relevant stakeholders to achieve sustainable urban development.’4 The collective vision and political commitments included in the NUA work in the direction of making urbanization ‘a powerful tool for sustainable development for both developing and developed countries’ and reversing unsustainable practices. They ‘operationalize’ the requirements under Sustainable Development Goal 11 of inclusive, safe, resilient and sustainable cities and human settlements.5 The 175 paragraphs of the NUA include statements on a shared vision for sustainable urban development, underlying principles and commitments and a joint

4 Maria Mousmouti call for action. The second part of the NUA is the Quito Implementation Plan that includes transformative commitments for sustainable urban development on social inclusion, ending poverty, inclusive prosperity, environmental sustainability and resilient development in cities and of cities. The second part of the implementation plan focuses on effective implementation, making reference to governance structures, spatial development planning and management, and means of implementation. The third and last part of the implementation plan provides for follow-up and review of the NUA.6 It takes no more than a superficial reading to see that the NUA is far from binding. Its long list of ‘[t]ransformative commitments’ and the encouragement of supporting ‘measures’ and ‘approaches’ that foster social and economic advancement have a ‘political’ nature reflected in their content and in language used.7 Paragraph 26 on urban and rural development is a characteristic example: We commit ourselves to urban and rural development that is people-centred, protects the planet, and is age- and gender-responsive and to the realization of all human rights and fundamental freedoms, facilitating living together, ending all forms of discrimination and violence, and empowering all individuals and communities while enabling their full and meaningful participation. We further commit ourselves to promoting culture and respect for diversity and equality as key elements in the humanization of our cities and human settlements.8 There is little to object to before such eloquent declarations of good intentions, but what does this commitment actually mean?9 Apart from saying too much, a single paragraph links urban development to numerous factors such as the environment, human rights, equality, discrimination, violence, empowerment and participation, yet with a degree of abstraction that makes concrete action extremely tricky to fgure out. This single commitment (out of many in the NUA) can be understood to mean anything from a complete revamping of national urban and rural development systems in the direction of sustainability, to limited ‘cosmetic’ changes, to nothing at all. Where do these commitments sit in relation to existing urban systems? And what kind of action is to be undertaken as a result? The NUA does not fall into a vacuum, however. A multiplicity of international binding and non-binding documents are in place covering a number of areas (the text refers to many of them), not to mention national, regional or local policies that determine the main features of urbanization in national or subnational contexts. At the same time, a multiplicity of urban rules of distinct nature and texture (constitutional provisions, statutory law, regulations) define conditions for access to land, infrastructure, housing, and basic services, lays out rules for planning, decision making, and participation, sets requirements for urban development initiatives and the mandates for urban authorities, local governments, and communities. Let’s take housing, for example: the NUA makes housing a

Effective national policies and legislation 5 central issue in sustainable urbanization, setting the goal of integrating housing into national urban policies. Housing policies have existed for decades in national contexts, with varying experiences as to the type of interventions and the levels of support. Where does the NUA sit in relation to the body of these policies and laws? How does it affect them? What does it add to them? This question is even more noted in areas or concepts foreign to law such as ‘the right to the city’10 or smart cities.11 Especially the former has been a key aspect of the Habitat III process and a ‘new paradigm that provides an alternative framework to re-think cities and urbanization.’12 But does it affect what is already in place? And if so, how? Does the NUA advocate a particular course of action? And what are states required or expected to do? These questions can go on. The NUA as a soft law instrument raises a number of questions with regard to its nature, role and function in relation to existing mechanisms. Its focus on vision, aspirations and commitments rather than binding rules, its political (rather than legal) language, the lack of a formal implementation framework and its reliance on persuasive rather than normative mechanisms leaves doubt as to whether and how it changes or otherwise affects the existing rules of the game, not to mention influence and guide future developments. In other words, if the NUA aims to nudge sustainable urban development, how does it go about it? Can this long list of commitments produce the change required? And how will it be different from the limited impact of the first two UN-Habitat Conferences?13 The NUA, as other soft law instruments, ‘lacks teeth’ in the ordinary sense but is not completely devoid of legal effect.14 First, it prompts public and political debate. Second, its immediate legal effects extend in the field of good faith and self-commitment of the parties. Third, it develops the content of existing binding norms (international and national) by contributing to their interpretation and guiding courts, administrations and legislative authorities when applying domestic law.15 These legal effects have been deemed analogous to those of general principles of law, which develop and clarify the content of norms even though they do not apply on an ‘all or nothing’ basis.16 In other words, the NUA, although positioned in the twilight zone between law and politics, international and national law, has a unique role to play. Its transformative commitments coexist with international and national rules and provide a layer of supergoals whose role is to steer their content and interpretation in their direction.

The NUA and existing urban policies and legislation If the NUA indeed has a unique role to play in changing the urban landscape, how does it go about producing the desired change? What is the strategy and the mechanics of this intervention? The instrument admittedly has a clear, although extremely ambitious, purpose: to work towards an urban paradigm shift for sustainable urban development. This is broken down in smaller sub-goals of sustainable, inclusive and resilient

6 Maria Mousmouti cities. All terms used are politically loaded, extremely broad and with little clarity with regard to their content. In fact, the entire document is about objectives but without a clear pathway on how to achieve them. A ‘shared vision’, a list of ‘transformative commitments’ and supporting ‘measures’ and ‘approaches’ that foster social and economic advancement are its main ‘mechanism’ for change.17 The NUA does not clarify what is expected in terms of results and outcomes. And even though a review process is provided for, its overall functionality and expedience are not clear. Further, despite the emphasis on implementation, the instrument does not come up with a clear implementation plan. Instead, it recognizes the leading role of governments ‘in the definition and implementation of inclusive and effective urban policies and legislation for sustainable urban development, and the equally important contributions of subnational and local governments, as well as civil society and other relevant stakeholders.’18 In other words, the NUA points at the will and discretion of national governments and, ultimately, their policies and laws. If change is to be produced, this will need to be initiated, led and implemented by governments, using their good old tools. Although the close connection between the NUA and national policies and legislation seems evident, the NUA shies away from making this link. This quick scan shows the strengths and weaknesses of the NUA. On the whole, its composing elements are not balanced; it lacks a mechanism to produce change proportionate to the scope of the objectives; its overambitious purpose is met by scarce means, while its implementation is indefinite and its expected results unclear. With such poor mechanics, how can the NUA achieve the desired paradigm shift, especially against the evidence of the limited impact of its predecessors?19 Is it true that the call of the NUA for ‘safe, resilient, sustainable and inclusive cities’ is ‘path dependent on old methodological tools . . . and institutional frameworks . . . that did not work’?20 Seemingly, the NUA leaves a very broad margin of choice to national and local governments with regard to how to operationalise its long list of commitments. However, even though it refrains from saying it explicitly, the NUA ultimately relies on national policies and legislation to translate its goals and commitments into concrete actions and rules (where necessary). The real implementation mechanism of the NUA are national policies and legislation – and they need to be ‘effective’.21 What does this small word, used thirty-two times, mean in the context of this document? I will come back to this point later on. So the NUA, as a supranational goal-setting instrument, interacts with the existing framework of urban rules in two main ways: firstly, by prompting the alignment of existing national policies and legislation (the existing ‘rules of the game’) with the commitments and goals of the NUA; and secondly, by guiding the design of effective new policies and legislation to operationalize and translate these policy goals into concrete (legislative or non-legislative) action. The legal relevance of the transformative commitments of the NUA is to provide the substantive benchmarks for assessing existing policies and legislation in relation to them; and to enable the translation of these goals into effective policies and laws.

Effective national policies and legislation 7 The NUA as a benchmark for the review of national policies The first way in which the NUA can prove influential and create impact is its potential to provide a systemic framework of how the distinct goals are approached in national, regional and local settings. As already mentioned, the NUA includes a multiplicity of commitments, common goals and expectations. Its 175 transformative commitments for sustainable urban development refer to social inclusion, poverty, inclusive prosperity, environmental sustainability and resilient development in cities and of cities. These commitments offer a clear set of benchmarks for the assessment and review of urban policies and legislation under their prism. Given the diversity of contexts and experiences, this works both for countries with sophisticated urban policies and norms and those in earlier development phases. How do existing policies and laws fare in terms of ecological sustainability, urban resilience and inclusion? The NUA offers an elaborate set of qualitative benchmarks for a meta-review of national policies in relation to the agreed-upon goals and commitments. This can be achieved through a comprehensive process of evaluation and review and will inevitably highlight what needs to be changed. Review processes can respond to a broad range of situations, from policies and laws that are outdated, to areas requiring revamping, novel approaches or more specific need for change. Yet it needs to be systemic and move away from opportunistic short-term changes towards the broader picture. What is an important function of the NUA, especially for developed countries, is to revisit the rationale, the intention and the function of the existing urban system in its light. Review and evaluation are based on the idea that the results and effects of policies and legislation can be studied and used for correcting and improving them.22 It is systematic and objective, generates information on causal relationships between action and social attitudes or circumstances, and is an accountability and learning process that enables governments to improve the quality of their policies and laws.23 Review and evaluation can be comprehensive or focus on different angles but essentially involve an objective assessment of how policies and laws are performing against the desired objectives, such as what works, what does not work and why, and what is required in order to achieve the overarching (policy) goals. Review will inevitably result in the identification of success stories and failures of the existing system and will highlight with clarity what needs to change and what can change in order to reach the desired objective. This will essentially result in new policies or in corrections in existing policies. Review serves also another – not less important – function: the need to learn from experience. Evidence, knowledge and experience are important for sharpening policymakers’ perceptions on effective action, reducing ambiguity and distrust and making policies more relevant, appropriate, effective and coherent. The knowledge emanating from review or evaluation is an invaluable, yet underestimated, learning mechanism of strategic added value for the effectiveness of future policies and legislation. More effort needs to be invested in conducting evaluation exercises and in strengthening their use as learning mechanisms.

8 Maria Mousmouti The NUA as an enabler of effective urban legislation The second way in which the NUA can make a difference is by enabling the design of effective urban legislation, translating its objectives into national policies and rules. Even though legislation is neither the only nor necessarily the most appropriate way to achieve policy goals, the relationship between rules and urban development is one of interdependence: urban policies require legislation to acquire flesh and blood, and urban legislative frameworks set out the specific features of management and development of the urban development model. In this sense, legislation is an important litmus test for the impact of the NUA in the real world. Does urban legislation work in support of the NUA commitments? Or does it look in other directions? Despite its importance, urban legislation appears to be a forgotten element in the urban development landscape.24 One scenario is where urban legislation has hardly changed in a long time, resulting in severe implications in access to housing, the social function of land and diversity in forms of production of the city. Another scenario is where laws are in place, but their ambiguity, complexity and lack of clarity had negative impacts on competitiveness and economic growth and led to informal arrangements and corruption. A third scenario is where urban legislation is produced at haste, dominated by technical concerns, without a clear method and ends up being un-implementable, disconnected from local contexts or completely missing the point. Success stories are not common. Yet none of these scenarios are sustainable or can contribute in any conceivable way to any sustainability paradigm. What the NUA can do as an enabler of effective legislation is to raise awareness on the importance of effective legal frameworks and enable the exchange of know-how, experience and expertise. But before looking into whether and how effective urban laws can be consciously engineered, let us first understand what effectiveness means and how it is relevant to legislation.

Effective lawmaking frameworks The features of good legislation have been a concern for a while now. The importance of good legislation for sustaining the rule of law and sustainable development have been solidly established.25 Effcacy, effectiveness and effciency are essential qualities of good law.26 Effectiveness is the capacity of legislation to do the job it is meant to do.27 Conceptually, effectiveness aligns four fundamental elements that are present in every law: the objectives of the law, the ‘solution’ expressed in the content of the law, its results and the overarching structure of the law. Each element has a distinct importance for effectiveness: purpose sets the benchmark for what legislation aims to achieve; the substantive content determines how the law will achieve the desired results and how this will be communicated to its subjects. The results of legislation indicate what has been achieved. The overarching structure

Effective national policies and legislation 9 of legislation determines how the law integrates the legal system and interacts with it. Although the influence of external factors on the broader effects of legislation cannot be undermined, the effectiveness of a legislative text is determined to an important extent by the way in which legislation is integrated into the legal system, the way its purpose is expressed, its content, structure, and the ways to capture and measures its real-life results. Experience shows that effective legislation does not materialise magically. In fact, it will not materialize unless explicitly anticipated. This means that effectiveness can be engineered, and laws can be more effective, if this concern guides the design and drafting process and appropriate expertise and skill is used. Apart from the mechanics of effective lawmaking, to which I will return later, the achievement of effective legislation depends also on broader factors that make lawmaking frameworks enabling. And while this is not specific to urban laws, it is of particular relevance because of the complexity of urban legislation, the prevalence of technical and non-legal concerns, and also because of the social impact of ‘wrong’ choices and the scope and the cost of decisions. Four factors are particularly important: First, effective legislation requires a clear process of design.28 A law is not a collection of random rules but a microsystem offering a formula fit for purpose – and context. The more elaborate the social changes sought, the more delicate the provisions and machinery required to carry it out. Design looks at the broader picture (rather than microscopic detail) in order to allow strategic decisions on the fundamental elements of new legislation and especially its objectives, the choice of appropriate rules, enforcement mechanisms, compliance and communication choices. Second, effective legislation can only evolve as an evidence-based and participatory dialectic process among stakeholders, disciplines and expertise (technical and legislative). It cannot be dominated or guided by technical concerns (as is often the case) and cannot ignore the economic and socio-legal implications of the choices made. The coexistence of policy experts, legal experts, economists and experienced legislative drafters is a conditio sine qua non for the design of legislation that aspires to be effective. Third, effective legislation cannot be produced overnight. It requires the time and space to approach the topic holistically, analyse its obvious and hidden aspects, to mature, and engage in active thinking on available options or solutions and their impacts. Thornton’s five stages of legislative drafting offer an excellent framework for incrementally zooming into the subject by understanding a legislative proposal;29 analysing it, designing the structure of the text, and then progressing to composing and developing a draft, and verifying it. Fourth, effective legislation requires a clear link to policy. Policy is different from the law; it uses different language and means. Policy thinks big, whereas legislation thinks specific. Yet the two need to work together, especially in a framework oriented towards urban sustainability. The law needs policy to acquire context and policy needs the law to make measures binding where necessary. This link between the two, and especially the link between the transformative policy

10 Maria Mousmouti commitments of the NUA, national policy goals and legislative objectives, needs to be obvious.

Eight key points for effective legislation The foundation of effectiveness, however, is to be found in every legislative text. Its composing elements are purpose, content, context and results. Each element has a distinct importance for effectiveness: purpose sets the benchmark for what legislation aims to achieve; the substantive content determines how the law will achieve the desired results and how this will be communicated to its subjects. The results of legislation indicate what has been achieved. The overarching structure of legislation (context) determines how the law integrates the legal system and interacts with it. The mechanics of designing effective legislation cannot be exhausted here, but some key elements are highlighted as follows: First, legislation needs a purpose that reflects in an unambiguous way what the law aims to achieve in the legislative, policy and social domain. Purpose needs to be an operative part of the law that is clear, objectively identifiable and traceable, reflecting the different levels at which legislation is expected to operate (direct and broader objectives, results, outcomes and effects) and setting a clear and substantive benchmark for what the law aims to achieve. In this way, professionals, citizens and enforcement agencies can interpret, enforce or understand what is going on. Second, an effective law needs to offer a clear (legal) solution to the problem addressed. Laws can intervene in different ways, by punishing, conferring rights or creating obligations, setting standards or establishing procedures, to name only a few. What aspects of a problem or situation are addressed through legislation? What is the best formula for the specific issue in the specific context? What types of rules can be used? What are their advantages and disadvantages, anticipated effects, costs and impact? Numerous examples of conceptual errors in legislation demonstrate the impacts of ‘wrong’ rules.30 Inappropriate standards in discordance with the needs of urban areas, unrealistic and unnecessarily strict building requirements, and poorly coordinated procedures result in non-compliance, informality, manipulation of markets, and exclusion, among other issues. From a legislative perspective, in many of these examples, rules are ineffective because they give a ‘wrong’ formula. Finding the right legislative solution is a highly contextual exercise that lies at the ‘heart’ of lawmaking. There are no a priori wrong or right solutions – and this is why borrowing legislative solutions is not always a good idea. Similar problems can be addressed (more or less effectively) using the same or completely different (legislative) means in different countries or contexts. A sustainable city in Europe and in Africa will have different features. Legislation is effective when it brings forward a solution that fits within the existing context (historical, constitutional, theoretical) and has the potential to work.

Effective national policies and legislation 11 Third, legislation is drafted on the assumption that subjects will comply. Yet compliance is extremely tricky to predict and measure, especially in urban contexts. Its processes are complex, dynamic, interactive and rely on motives, threats and promises, as well as organizational capacities, social and economic environments, institutions and the influence of peer groups and costs.31 Lawmakers need to actively predict how target populations are likely to react to legislative obligations. They also need to design appropriate enforcement mechanisms that will intervene, if people do not comply. Enforcement ‘communicates’ norms, ‘reminds’ subjects of obligations and ‘reassures’ compliers that they are not fools to comply.32 An effective law views enforcement as an important aspect of its mechanics and looks at options and all of their implications early on. Fourth, legislation needs to be effective as a means of communication. Every law includes a set of (legislative) messages directed to the public, professionals, lawmakers, enforcers and the judiciary, among others (what their rights are, what obligations they are under, etc.). Clear and unambiguous (legislative) messages are a demanding task if not considered proactively in relation to the audiences of legislation and communication choices that will best get the message across. Legislative communication is much broader than language and involves structure, titles, language, syntax and grammar, graphic illustrations, tables and examples, to name only a few. Fifth, on a broader scale, the new messages in every new law fall within the broader legal system and interact, coexist or compete with other messages which are already there. When one set of provisions directs a specific group towards one behavior while another offers motives to the exact opposite, there is an obvious problem in the coherence of these legislative messages. They sabotage each other. An effective law needs to be coherent with the rest of the legal system. Overlapping or poorly coordinated provisions (and legislative messages) are common in urban law. In Kenya, planning provisions introduced at different levels and through different acts (Physical Planning Act 1996, the Constitution of 2010, Urban Areas and Cities Act of 2011)33 include several contradictions, introduce parallel procedures, and evince an unclear hierarchisation and relation among different types of plans. How are citizens to make sense of them? Sixth, implementation is an issue that needs to be considered when legislation is designed, not after it is enacted. Implementation is a complex ‘assembly’ of mechanisms, funds and actors that requires strategic interactions, the adoption of regulation, the setup or mobilization of enforcement mechanisms, and the transfer of funds and resources, to name only a few of the processes that have to take place.34 If what is required for implementation is not clear, governments often experience crude surprises: resources or infrastructures are insufficient or not in place, or stakeholders resist, for example. Implementation needs to be considered early on. Seventh, effective legislation requires a clear framework for monitoring, review and evaluation. This will allow implementation, assessment performance, capturing the achievement of results and broader impacts, and evaluation and allowance for corrective interventions where necessary. Legislation is a ‘blind shot’ if there is no

12 Maria Mousmouti knowledge about how it is implemented, what results are generated and how it operates in real life. This means that all legislation needs to clearly anticipate the expected results and where possible to link them to measurable targets and benchmarks. Last but not least, knowledge and past experience are important for sharpening the lawmakers’ perception on legislation. We need to learn from the failure or the success of legislation that is already in place. What worked well and why? And what did not work? How can ineffective solutions or legislative patterns be avoided in the future? ‘Reflective lawmakers’ examine and question policy, the law and reality, reflect, test, learn, fail and try again. They give serious consideration to effectiveness and capitalise on past experience and lessons.

The way forward The NUA is an ambitious instrument, with a long list of non-binding – yet transformative – objectives. For a soft law instrument, the expectations vested in it are high while the means mobilized to serve them are scarce. The path to the urban utopia it describes is not clear and is left to the discretion, the will and the capacity of national governments to translate these commitments and goals into national policies and legislation. Policies and legislation are marginal issues in the NUA. Paradoxically, however, they are the only concrete implementation mechanism that the NUA has. So, if any impact is to be expected from the NUA, there is no escaping the need to either align policies and legislation or design new ones that will lay down the meaningful and inclusive frameworks required to lead to social change. Further, these should be in the position to deliver – to be effective. In its relationship with national frameworks, the NUA offers two things: the substantive policy goals and benchmarks for reviewing and assessing their achievements; and the policy goals for new policies and laws. Effectiveness is a seemingly neutral word ‘sneaked’ into the NUA. It requires policies and legislation to deliver results. Effectiveness is a real concern, especially with regard to urban legislation. Effective laws, capable of producing the desired regulatory results, are no easy matter and the cost of failure can be extremely high. Yet effective laws are not a utopia, but a manageable exercise in rational lawmaking, providing that an enabling framework, method, process, knowledge and expertise are in place. Effective policies and legislation require a clear purpose and means that can lead to this purpose, a smooth interaction with the surrounding legal environment and a system to monitor and capture results. The effectiveness test is a practical way of addressing these challenges through a set of probing questions for lawmakers or implementers.

Notes 1 Filippo M. Zerilli, The Rule of Soft Law: An Introduction, 56 FOCAAL—J. GLOBAL AND HIST. ANTHROPOLOGY 3.

Effective national policies and legislation 13 2 Matthias Goldmann, We Need to Cut Off the Head of the King: Past, Present, and Future Approaches to International Soft Law, 25 LEIDEN J. INT’L L. 335 (2012). 3 Andrew T. Guzman & Timothy Meyer, International Soft Law, 2 J. LEGAL ANALYSIS 171 (2010). 4 G.A. Res 71/256*, annex, New Urban Agenda ¶ 23 (Dec. 23, 2016) [hereinafter New Urban Agenda]. 5 New Urban Agenda, supra note 4, ¶ 23. 6 Matthias Garschagena & Libby Porter, The New Urban Agenda: From Vision to Policy and Action, 19 PLAN. THEORY & PRAC. 117 (2018). 7 See New Urban Agenda, supra note 4. 8 New Urban Agenda, supra note 4, ¶ 26. 9 Federico Caprotti, et al., The New Urban Agenda: Key Opportunities and Challenges for Policy and Practice, 10 URB. RES. & PRAC. 367 (2017). 10 Thomas Coggin, Law & the New Urban Agenda: A Role for the Right to the City?, FORDHAM URB. L. J. (May 11, 2018), https://news.law.fordham.edu/fulj/2018/ 05/11/thomas-coggin-law-the-new-urban-agenda-a-role-for-the-right-to-the-city/. 11 Annie Decker, Smart Law for Smart Cities, 41 FORDHAM URB. L.J. 1491 (2014). 12 U.N. Conference on Housing and Sustainable Urban Development, Habitat III Policy Papers: Policy Paper 1 The Right to the City and Cities for All, 25, A/ CONF.226/PC.3/14 (2017). 13 Matthias Garschagen, et al., Will the New Urban Agenda Have Any Positive Influence on Governments and International Agencies?, 19 PLAN. THEORY & PRAC. 117, 121–23 (2018). 14 ANNE PETERS & ISABELLA PAGOTTO, SOFT LAW AS A NEW MODE OF GOVERNANCE: A LEGAL PERSPECTIVE, NEWGOV (2006), www.eu-newgov.org/database/DELIV/ D04D11. 15 Soft Law, MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (2009). 16 András Kovács, et al., The Legal Effects of European Soft Law and Their Recognition at National Administrative Courts, 2016 ELTE L.J. 53 (2016). 17 See New Urban Agenda, supra note 4. 18 New Urban Agenda, supra note 4, ¶ 15. 19 Garschagen, et al., supra note 13, at 121. 20 Maria Kaika, ‘Don’t Call Me Resilient Again!’: The New Urban Agenda as Immunology . . . or . . . What Happens When Communities Refuse to be Vaccinated with ‘Smart Cities’ and Indicators, 29 ENV’T & URBANIZATION 89 (2017). 21 See New Urban Agenda, supra note 4. 22 Heinz Schäffer, Evaluation and Assessment of Legal Effects Procedures: Towards a More Rational and Responsible Lawmaking Process, 22 STATUTE L. REV. 132 (2001); Nicoletta Stame, Governance, Democracy and Evaluation, 12 EVALUATION 7 (2006). 23 Luzius Mader, Evaluating the Effects: A Contribution to the Quality of Legislation, 22 STATUTE L. REV. 119 (2001). 24 U.N.-Habitat, Urbanization and Development: Emerging Issues. World Cities Report 2016 (2016). 25 Maria Mousmouti & Gianluca Crispi, “Good” Legislation as a Means of Ensuring Voice, Accountability, and the Delivery of Results in Urban Development, 6 WORLD BANK LEGAL REV. 257 (2015). 26 Maria Mοusmouti, Making Legislative Effectiveness an Operational Concept: Unfolding the Effectiveness Test as a Conceptual Tool for Lawmaking, 9 EUR. J. RISK REG. 445 (2018). 27 Id. 28 MARIA MOUSMOUTI, DESIGNING EFFECTIVE LEGISLATION (2019). 29 HELEN XANTHAKI, THORNTON’S LEGISLATIVE DRAFTING (5th ed. 2013); HELEN XANTHAKI, DRAFTING LEGISLATION: ART AND TECHNOLOGY OF RULES FOR REGULATION (2014).

14 Maria Mousmouti 30 Mousmouti & Crispi, supra note 25. 31 Christine Parker & Vibeke Lehmann Nielsen, Introduction, in EXPLAINING COMPLIANCE: BUSINESS RESPONSES TO REGULATION 5 (2011). 32 Robert A. Kagan, et al., Fear, Duty and Regulatory Compliance: Lessons from Three Research Projects, in EXPLAINING COMPLIANCE: BUSINESS RESPONSES TO REGULATION 37, 37–41 (2011). 33 Mousmouti & Crispi, supra note 25. 34 EUGENE BARDACH, THE IMPLEMENTATION GAME: WHAT HAPPENS AFTER A BILL BECOMES A LAW 36–37 (1977).

2

Financing the New Urban Agenda Matthew D. Glasser

Introduction The first United Nations (U.N.) Conference on Human Settlements held in Vancouver, Canada in 1976 was primarily concerned with unacceptable human settlements and uncontrolled urbanization. The core challenge was articulated as a failure of adequate policies and planning, and the proposed remedy was “bold, meaningful and effective human settlement policies and spatial planning strategies.” The Vancouver Declaration mentions financing only once, in the context of “adequate national and international financing” to develop innovative approaches in formulating and implementing settlement programmes.1 At the second U.N. Conference on Human Settlements, held in Istanbul, Turkey in 1996, the U.N. developed the policies and goals articulated in the Istanbul Declaration, which slightly broadened the objective to “adequate shelter for all and sustainable human settlements development.” The 1996 Declaration mentioned financing three times: first, advocating “positive actions on the issues of financing of development;” second, highlighting the need to strengthen the financial and technical capacities of democratic local authorities; and third, urging mobilization of “new and additional resources from all sources.”2 Although these references are general, there were two important evolutions from the 1976 Declaration: first, the recognition that money was needed to finance development per se, not just for policies and strategies; and second, that local government has a core role in financing and implementation. After another twenty years, the U.N. adopted the Quito Declaration, known formally as the New Urban Agenda (NUA). This document significantly expanded the global urban agenda to acknowledge and incorporate the Sustainable Development Goals, the Paris Agreement on Climate Change, the Addis Ababa Action Agenda of the Third International Conference on Financing for Development, and a host of other international agreements that complement and compete for resources. Finances are mentioned no less than fifty times in the NUA and are recognized as one of the four “fundamental drivers of change,” committing declarants to “[s]upport effective, innovative and sustainable financing frameworks and instruments enabling strengthened municipal finance and local fiscal systems in order to create, sustain and share the value generated by sustainable urban development in an inclusive manner.”3

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This chapter explores approaches and instruments that may be helpful in working toward the goals of the NUA, as well as some of the complexities involved, in the realm of finance. Practical challenges to municipal finance theory arise from the need for appropriate national legislation to enable local government action, and from political challenges that bedevil national-local relationships and statecitizen accountability. Perhaps the NUA can stimulate national and local government leaders to make progress on clarifying roles and responsibilities.

What shapes our cities? Within the context of extrinsic factors such as geography, culture, and history, at least four primary domains affect urban outcomes: 1 2 3 4

Land use planning and regulation; Public sector revenue choices; Public sector expenditure choices; Private investments and decisions.

The success or failure of the NUA depends on all four of these domains. Yet the state, including all spheres or tiers of government, manages only the frst three. Private choices in the fourth domain take place in the context of, and are infuenced by, public sector choices across the frst three domains. Decisions in the fourth domain may well have the greatest impact on our cities, as people and frms decide what to build and where, where to live or operate a business, whether to stay or leave a city, and so on. Government can make certain options more or less attractive, and it can outlaw some kinds of development, but absent state control over trade and industry, it is personal choice and private enterprise, operating within the context established by the frst three domains, that largely shapes our cities. This chapter does not deal with the first domain, land use planning and regulation, which leaves two domains for us to consider here – essentially how and from whom government gets its funds, and how and on what it spends those funds. Notably, financing implies prioritization and redistribution. At the local and national level, different cities and countries will prioritize the multiple goals of the NUA differently. In some cities, the emphasis may be more on economic growth and jobs, whereas in others, top priorities may be human health or climate resilience. Additionally, NUA objectives will be pursued differently within cities, between cities within national boundaries, and across the globe given the context of rising inequality of wealth and incomes.4 Since poor people, especially in developing countries, will be unable to achieve the desired outcomes with their own resources, wealthier citizens will have to subsidize services and infrastructure. The degree of redistribution will vary from place to place, over time, and will be contested. From both a national and a global perspective, financing the NUA will inevitably entail some redistribution – the breadth of NUA goals implies significant support from wealthier nations for the benefit of people and cities in poorer nations, and for the global public good.

Financing the New Urban Agenda 17

A complex legal environment for urban finance National and subnational legislation determines the responsibilities, powers, and functions of local governments and of other actors in urban spaces. What a given local government can and must do in terms of revenues and expenditure may be spelled out in a constitution,5 in national legislation,6 in state or provincial legislation,7 and in a local government’s own legislation.8 Substantive powers and functions, as well as revenue powers and expenditure responsibilities, vary from country to country and sometimes city to city. The goals of the NUA are broad. In Paragraph 5, the NUA states: By readdressing the way cities and human settlements are . . . financed . . . the New Urban Agenda will help to end poverty and hunger in all its forms and dimensions; reduce inequalities; promote sustained, inclusive and sustainable economic growth; achieve gender equality and the empowerment of all women and girls in order to fully harness their vital contribution to sustainable development; improve human health and well-being; foster resilience; and protect the environment.9 Some of these aims relate to global public goods that beneft all people, regardless of where they live. Delivering such global public goods will require coordinated policy action and fnancing at all levels – international, national, and local.10 At the international level, the NUA calls for, inter alia, “mobilization of financial resources, taking into account the commitment of developed and developing countries and tapping into all available traditional and innovative sources at the global, regional, national, subnational and local levels.”11 While the NUA and other multilateral agreements are critical to establishing principles and shared commitments, they do not provide any financing. Global and regional investment funds are being created to provide loan capital to help national and local actors achieve NUA objectives, Strategic Development Goals, and Paris Agreement targets. The capacity of nations and cities to use these funds effectively varies tremendously. As decades of development lending have shown, throwing money at a problem is never enough. Domestic commitment and political will to pursue agreed-upon objectives is an essential co-factor. Although the NUA does not emphasize the need to strengthen the financial and technical capacities of local authorities, as did the 1996 Istanbul Declaration, national governments that support the objectives of the NUA still need to consider legal reforms to enable more local discretion and autonomy, if only because most countries’ abilities to manage cities effectively from the center is limited. Some countries approach urban challenges primarily through a central, sectoral lens: a human settlements ministry may develop and manage urban housing programmes, while a water ministry is responsible for urban water and sanitary sewer systems, and so on. It can be difficult for such sectoral bureaucracies to coordinate effectively in the urban space. Putting local governments in charge

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of planning and coordinating infrastructure investment is often a better solution, even though it can take time and attention to develop local capacity. An enabling framework for effective municipal finance would ideally address the following key issues: first, the powers and functions of local governments should be clear. This relates to clarity in the substantive obligations of the local government as to what extent it is responsible for building and operating infrastructure to provide water and sanitation services, health and education services, etc. This also relates to clarity in the financial and fiscal powers of the local government, over issues such as revenue instruments, transfer entitlements, expenditure authority, and borrowing-related powers. Second, the rules governing local government financial management should be clear. They should mandate reliable and transparent information about local finances, including budgeting, procurement, expenditures, accounting, financial reporting, and auditing. Third, revenues should be predictable and adequate, whether through ownsource revenue powers, intergovernmental transfers, or a combination of these. To the extent intergovernmental transfers are involved, they should be formula driven and not discretionary. Fourth, if municipal borrowing for infrastructure is authorized, the legislation should be clear as to authority, limitations, and procedures. It should require that the community be actively involved in setting borrowing and investment priorities. Creditor remedies should be well-defined, as ambiguity will increase the cost or foreclose the possibility of borrowing altogether. National guarantees should be approached with extreme caution as they dilute accountability and the discipline of the marketplace. And finally, measures should be in place to build and maintain institutional capacity and integrity. To make effective choices, local government managers and political leaders must be able to develop and implement long-term financial strategies, to budget and implement, and to understand the impact of both borrowing and the maintenance and operation of new infrastructure investments on future budgets. At the local level, where NUA outcomes will ultimately be manifested, many local governments work with limited finances and are critically limited in terms of their authority and capacity to formulate, adopt, and implement urban policies. If national governments expect local governments to help achieve NUA goals, they must entrust them with authority, resources, revenue instruments, and the capacity to develop and implement appropriate policies. Although many cities will require financial support from national governments, and some may require international support, some elements of the NUA are appropriate for financing at the city level. Where NUA goals can be achieved with local resources, it is appropriate and efficient to do so. Therefore, local governments’ revenue powers should be meaningful. For example, if a country envisions strong local governments delivering the built environment and urban services necessary to NUA objectives, then legislation should authorize revenue powers to meet a significant share of those responsibilities. This lays the foundation for

Financing the New Urban Agenda 19 an effective social contract between citizens and their municipality. Notably, a local government that depends on grants from national government cannot fully determine its destiny. All else being equal, a local government that generates its own financial resources has more choices, more autonomy, and can better reflect the needs and preferences of its own citizens.

Revenue choices A local government needs revenue for both operating expenditures such as salaries, supplies, maintenance, and for capital investment to create, replace, and upgrade its infrastructure. While operating expenditures are generally steady and must be paid each year, capital expenditures can be quite lumpy. And, when national legislation determines the taxes, fees, and charges that are available to various levels of government, it often reserves those that are most productive and relatively easy to administer for national government. It is not uncommon for local government to be left with a long list of potential taxes, fees, and charges that are relatively unproductive or unpopular, or both, especially in developing countries.

Local taxes Taxes are compulsory payments that are not related to a particular benefit received. This means that tax revenues are versatile: local governments can use tax revenues for any lawful purpose and for the general public good. This differentiates taxes from fees and charges, which generally bear some relationship to a service or benefit received. There are many different types of taxes, but as British political economist David Ricardo noted in 1817, taxes are ultimately paid from capital or revenue.12 It is helpful to think about what characteristics make a tax “local.” The legal framework underlying local taxes can itself be entirely local; it can be entirely determined by national or state legislation; or it can be a hybrid with parameters determined by higher legislation and locally. For local tax, key parameters include the tax base, or what is to be taxed; the tax rate (how much per unit of tax base); exemptions and exclusions, such as which property, transactions, or activities are not taxed; processes like what triggers the payment of tax, how is it paid, and whether taxpayers are required to file returns; and remedies, including how government can enforce payment and how the taxpayer may object to determinations of tax liability or recover tax wrongfully collected.

Land and real property taxes The most common local tax on assets is a real property tax, particularly in Anglophone countries and the Netherlands. A tax on real property can be imposed either on the raw value of land or on the combined value of land and improvements. The idea of a single tax on land value was urged most famously by the American political economist Henry George. He saw land as a scarce natural

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resource, properly belonging to society as a whole and not to individuals. He argued that a value-based tax on land (and not on the value of buildings and other improvements) was a good way for society to (re-)capture the value of the land. And, such a tax encourages productive investment: because an owner must pay taxes (rent to society) on the value of the land, George argued that a speculator will not hold it indefinitely without doing something productive with it, like building factories, homes, or offices.13 The American economist Milton Friedman has opined that “the least bad tax is the property tax on the unimproved value of land, the Henry George argument of many, many years ago.”14

Land value capture The most common value capture mechanism is the general real property tax itself. The value of any given property is affected by its proximity to amenities. Thus, for example, when a new metro station or highway interchange is installed, nearby land becomes more valuable. And as the real property is developed or redeveloped, its value typically goes up even more. Thus, even if the rate of taxation does not change, the tax revenue generated from nearby properties goes up. The effectiveness of this mechanism depends, of course, on a smoothly functioning ad valorem property tax system. Local government finance officials are often interested in other value capture mechanisms, for at least two reasons: 1) because they offer a targeted method to finance infrastructure benefitting specific properties, and 2) because some such targeted infrastructure investments can be leveraged in private investment, which will hopefully benefit the city more widely, by providing employment opportunities, a more robust and diverse tax base, commercial and other amenities, and in a myriad of other ways. Tax increment financing (TIF) is widely used in the United States, especially in the urban renewal context. As applied to real property taxes, the concept is that a target area is specified for redevelopment, and current property tax revenues within the perimeter are documented. The local government then borrows money to finance improvements which will benefit properties within the perimeter. When these properties increase in value, due to public and private investment, this generates increased tax revenue. This incremental increase is pledged to repay the funds that were borrowed to pay for infrastructure. Property owners within the perimeter do not pay a higher tax rate than other parts of the city – their tax bills go up only because of increased valuation. Other “value capture” approaches impose taxes or fees on benefited property owners in addition to the property tax. Examples include special improvement districts and business improvement districts under U.S. law and betterment levies under United Kingdom law.

Taxes on financial activities The second type of tax identified by Ricardo was a tax on revenue. To expand his category somewhat, we might call this a tax on economic activity. Whereas

Financing the New Urban Agenda 21 property tax is based on the fact of ownership, a revenue tax is triggered by some financial activity. Examples include income taxes, consumption taxes, inventory turnover taxes, sales taxes, and value added taxes (VAT). In some countries like Scandinavia, local income taxes are common. In South Africa, the income tax is reserved for the national government alone.15 Taxes based on economic activity have the advantage of buoyancy – tax revenues rise as the economy grows. Some of these taxes can have a negative impact on economic growth, however, as they make goods and services marginally more expensive for consumers and businesses.16 And, if they are too high, such taxes can discourage formal sector economic activity and push transactions into the informal economy. Local sales taxes are rare in countries with a VAT, because of complications in coordinating the two types of taxes. In many countries, VAT taxes are shared with local governments, pursuant to national legislation.17 In the US, sales taxes are imposed by states, cities, and special financing districts.18 Use taxes are a first cousin to sales taxes and can be used to shift the locus of taxation from the place where a thing is bought to the place where it is used. Other local taxes that are triggered by financial activity include consumption and excise taxes. These usually target the consumption of utility services or purchases of petrol, alcohol, cigarettes, and other luxury items. In tourist and commercial areas around the world, special hotel and restaurant taxes are not uncommon. For each of these, there are important fiscal policy issues, which are beyond the scope of this article, including what transactions will be taxed, at what rate, and who will bear the burden of taxation.

User fees and charges Charges for urban services, such as water and electricity, are different from taxes, because they are paid by those who receive services, usually in proportion to what they use, rather than by the general population. The distinction between taxes, user fees, and other types of charges can have important legal implications. The principle underlying user fees is to match private benefit with private payment. However, many developing countries maintain user fees at inadequate levels, in the name of protecting the poor. This is unfortunate, since untargeted subsidies clearly benefit the rich more than the poor and deprive urban utility systems of critical revenues they need to provide dependable services.19 To provide basic services to poor people who cannot afford to pay, some countries use targeted subsidy mechanisms, providing free or subsidized services to those at the bottom of the economic ladder, without impairing the service provider’s ability to recover costs from those with the ability to pay. South Africa’s “free basic services” program, first mooted in the run-up to the 2000 municipal elections, is perhaps one of the world’s best-developed schemes of this type.20 The goal is that the poor should have free access to basic water supply, sanitation, energy, and refuse services.21 South African municipalities support the cost of free services with both an equitable share transfer from national

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government and by charging more affluent users a slightly higher unit cost than would otherwise be necessary.

Intergovernmental transfers National governments use two kinds of transfers to local government: recurrent general-purpose transfers or revenue sharing to support governance and service provisions, and special-purpose or conditional transfers intended to support specific infrastructure or services. The theoretical justification for general-purpose transfers is a vertical imbalance: depending on legislation and the local economy, a local government may not have the revenues or revenue instruments to provide the quantum and quality of services that the legal and regulatory framework assigns to them. Poland, for example, relies heavily on intergovernmental transfers to support local government functions.22 The idea behind conditional grants or special-purpose grants is to ensure that funds are spent to pursue a policy goal that may be important to a higher level of government, but is not necessarily a priority for the local government. Many of the objectives of the NUA could, in principle, be advanced through the use of conditional transfers sourced from national or international sources. However, conditional grants can be difficult to design and administer, and do not always produce the intended outcomes.23 Moreover, they inherently subordinate local, democratic choice about investment priorities to the goals of higher levels of government.

Spending choices Not all of the NUA’s goals require services and infrastructure, but many do. The NUA refers to “equal access for all to physical and social infrastructure and basic services, as well as adequate and affordable housing.”24 Adequate infrastructure and services are also important for other NUA goals, such as “well-planned urbanization” “and “high productivity.”25 Sound strategies for financing infrastructure and services depend on legislative clarity. At a minimum, the legal and regulatory framework should provide clarity as to who is responsible for funding, planning, constructing, and operating infrastructure to provide services. In some countries this is a local government, but in many cases, responsibilities are divided vertically and horizontally. In Brazil, for example, only inner-city public transport and land use are purely local concerns.26 In Cambodia and Ghana, most functions are subject to strong central control. In Egypt, most functions are centralized, and subnational actors follow national directives.27 India is more complex, with various planning and investment authorities operating in most cities.28 These include state-created development authorities, district planning committees, industrial development and investment corporations, water and sanitation enterprises, and separate rail and bus systems. In complex, multi-institutional environments, there is often a lack of coordination, clear decision making, and accountability for outcomes.

Financing the New Urban Agenda 23 One aim of the NUA is for all citizens to have equal access to basic services. The term “basic services” appears nine times in the NUA, along with a number of related terms, such as “quality services,” “resilient urban services,” and “wellconnected infrastructure and services.”29 An appropriate definition of “basic services” for any given city will depend inter alia on the economic and cultural context. Reliable and safe drinking water, sanitation, and the safe disposal of both solid and liquid wastes are usually accepted as basic. Today, we would probably also consider some level of electricity a basic service. However, it would be useful to have national legislative clarity as to what services, at what levels, are considered essential. We will focus on water services, although the principles mentioned here can be applied to many other services. “Water” is mentioned more than two dozen times in the NUA, and water security is of increasing global interest.30 Growing urban populations, contaminated water sources, climate change, and aging water system infrastructure all contribute to a major urban challenge in most of the developing world and some of the developed world. Cape Town’s recent experience shows that even well-regarded systems have hidden vulnerabilities that can cause major problems.31 In large cities, delivering safe and reliable water supplies usually implies a centralized system for storing, treating, and transmitting water to customers. Legal authority and responsibility vary, and can be divided among different entities: in some places, a single local government or agency operates the entire system, from acquiring raw water and diverting it into storage, through treatment and delivery to the end user. In other places, one entity may divert and store water, and another may treat and distribute it. Sometimes infrastructure investment is managed by one agency and management and operations by another. In some places, parts or all of the water system, or alternative coping mechanisms, are developed or operated by private enterprises. Any combination is possible, and the financing approach must be adapted to fit the institutional structures, both formal and informal.

Capital costs and recovery Developing a system to acquire, store, treat, and deliver water implies significant up-front capital costs. Over time, new and expanded facilities are required, and aging components need to be renovated or replaced. Capital must be invested to design and build infrastructure significantly before services are provided. In developed countries, the local government or other operator will finance these investments with capital reserves, borrowed funds, or both. In developing countries, and in some developed countries, some or all of the investment capital will be provided by another level of government, either as a loan or as a grant. And that level of government may borrow the money from a development finance institution, such as the World Bank, or it may receive grant assistance from a bilateral donor or development partner. Even where initial capital investment is provided free of charge to the local water utility, sustainability implies the need to set aside capital over time for reinvestment

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and rehabilitation as the system ages and the city’s needs grow. Capital costs can be recovered in two ways: first, they can simply be rolled into the base on which tariffs are calculated, in which case they are (hopefully) recovered over a long period from user charges paid by all customers. This can set up some unfortunate dynamics: as the operator attempts to recover capital costs through tariffs, the burden on existing customers goes up, and they must subsidize the cost of infrastructure for new development. Politically, tariffs can be difficult to raise, so the capital costs may never be fully recovered through tariffs. In this case, new investment is delayed, and the system is likely to deteriorate for lack of proper maintenance.32 Alternatively, capital costs can be recovered in the form of connection fees imposed as connections to the water system are made.33 After the local government or other service provider has invested in plant and equipment, it can calculate connection fees to recover a pro rata share of its investment each time a new user connects to the system. Each new residential, commercial, or industrial service connection would then pay a share of the capital cost that has been incurred to provide service. That connection fee can be rolled into the builder’s overall cost structure and financed through a purchaser’s mortgage. This shifts both capital and financing costs onto the actual user in an affordable way, freeing up local government capital for further investment.34 Where the new user is an indigent household or neighborhood, the level of government responsible for welfare programs should pay the local government or operator in the same way as a private developer. This makes the cost of subsidies transparent and ensures that the operator has access to capital to build future infrastructure. This system also encourages economic efficiency and can help encourage compact urban development. Design standards and participation must also be taken into account because they affect costs. The investment required for any water system depends on the standard of infrastructure and the level of service to be provided. In developed countries, most people are used to having a reliable supply of safe water available, twenty-four hours a day, inside their homes. In developing countries, urban water supply systems are often of poor quality, may be compromised by unauthorized connections and deferred maintenance, may operate intermittently, and in some neighborhoods, may only extend to a standpipe in the neighborhood.35 An element of cost containment in such cases is to start with controlling water losses and to build new facilities only to the extent that they can be properly maintained. In order to ensure adequate finance and equitable outcomes for the entire community, the overall system should be designed with affordability and universal access in mind. It is appropriate to design and build a system, or a portion of a system, to reliably deliver water to those high-volume users (residential, commercial, and industrial) who can be required to pay at least the full capital and operating costs associated with the generous amounts of water they use. With such a fully funded backbone, the incremental cost of adding basic services for poor neighbors is relatively small. Cities need their richer residents and enterprises to participate in, and have a stake in, the community’s infrastructure and service delivery systems, for both financial and advocacy reasons. When the rich and middle class give up on public systems, and develop private alternatives and

Financing the New Urban Agenda 25 coping mechanisms, public systems are put under unnecessary financial strain. In his striking book about New Delhi, Rana Dasgupta portrays the private wells that are dug ever deeper, tapping into the receding water table in a bid to be free of limitations in the public water supply. Households and firms have their own water filtration installed. These privatized water systems operate alongside private generators that are used to avoid interruptions in electric supply. Dasgupta describes “a failed government system bypassed by a middle class which builds private micro-systems of its own and thereby pushes the system much faster towards collapse.”36

Operational cost recovery In addition to capital costs, ongoing operation and maintenance expenditure are necessary for labor, energy, chemicals, and other supplies. Operational costs are typically recovered through user charges, in whole or in part. To the extent that capital costs are not recovered through development charges, they should also be included in user charges. There are different approaches to setting user charges. They can be adjusted to conserve natural resources and for demand-management purposes. Ideally, pricing should be based on the full costs of operations and routine management of the water system, for reasons of equity and economic efficiency. Subsidies for those who cannot afford to pay the full cost of an adequate, reliable, and safe supply of water are both necessary and desirable. Not only is it morally and ethically necessary to ensure that our fellow human beings have access to decent water supplies, it has been clearly established that such access leads to improved social, educational, economic, and health benefits for the community at large. Providing a minimum level of basic water service to all residents of a city can thus be thought of as a public good, which should be financed out of general revenue sources (whether nationally or locally derived) and not solely through cross-subsidization within the water system. Many local governments subsidize the services they provide, sometimes explicitly, but too often by simply setting tariffs too low to recover the full costs. Explicit subsidies can be funded through intergovernmental transfers to the water provider, either for capital costs or for operations, or they can be funded through adjusting tariffs to achieve some level of cross-subsidization between different groups of customers. Some water providers simply do not recover the full cost from customers, without any explicit policy, and this means that in the long run they are not able to operate and maintain the system as intended, and there are not adequate funds for replacement or rehabilitation of systems that reach the end of their useful life.37

Borrowing as a spending choice Because national and local governments inevitably have limited current resources, the question of how to finance “lumpy” expenditures on big urban infrastructure

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projects is ever present. One option for local government is to set aside money each year from operating surpluses, so that investment capital is available when needed. In practice, this is rare. Even where there is a capital fund, there will always be more demand for investment than there is available capital – no city’s infrastructure is ever finished. Subject to appropriate legislation, local governments can legally spend more money than they have on hand. They do this by borrowing capital and using future revenues to repay the borrowed funds, together with interest. This is a spending choice, because instead of investing funds directly in infrastructure on a pay-as-you-go basis, they are used to repay borrowed capital. Here we are speaking of long-term borrowing to finance urban infrastructure. We do not address short-term borrowing to meet cash flow needs – an entirely different proposition – except to note that such borrowing should be kept to a minimum and paid off as soon as possible, barring extraordinary circumstances, within a fiscal year. A lack of discipline in payment of current obligations will eventually trigger a financial crisis. Before borrowing for infrastructure, local governments should have capital investment planning processes that anticipate investment needs in each of its major infrastructure systems and that set priorities and develop overall financing strategies. Such capital planning is not a focus of this chapter, as it is not primarily a legal process, and there are many excellent resources to consult.38 Local governments can potentially borrow from many sources, including domestic and international capital markets, development banks, and other financial institutions. Where possible, mobilizing private capital to finance urban infrastructure is an ideal solution. Private investment in public infrastructure eases the demands on national budgets and allows local governments to leverage their revenue streams, to build more infrastructure, and to do so faster than could be done on a pay-as-you-go basis. While some local governments have focused on borrowing in foreign currency for infrastructure, it is more realistic and less risky to look to domestic capital sources. Potential local government borrowers should understand where the potential sources of investment capital are in their own country and what liquidity and maturity profiles are attractive to those who are charged with managing that capital. Although banks do lend to local governments in many countries, the term of such lending tends to be constrained – demand deposits do not provide a solid basis for long-term lending. Ideal investors in longer-term local government debt are therefore those with long-term obligations of their own, such as pension funds and insurance companies. To support their plans for long-term borrowing, local governments should be able to present specific prioritized investment plans, with pro forma financial statements that show the timing and uses of borrowing and provisions for repayment, as well as projected expenditure for maintenance and operation of new infrastructure in the context of multi-year financial and fiscal planning. When local government finds private investors to provide capital, it can set its own local priorities, reflecting the needs of its citizens and local realities. While local government retains the bulk of financial risk, private sector involvement

Financing the New Urban Agenda 27 can help create an important discipline, because the investor will want to ensure repayment. Private investors have an interest in ensuring that the projects which a local government proposes to finance are sensible and can be financed using realistically available revenues. The scrutiny of outside investors tends to promote healthy management and financial practices and reduces the need for supervision and enforcement by other levels of government. At the same time, there is no passing the buck – if the infrastructure does not perform as expected, or is poorly managed, local government bears both political and financial risk. Local governments in well-managed cities can, and arguably should, borrow to finance substantial infrastructure with a long useful life (water, sewer and storm water systems, highways, bridges and transit systems, schools and hospitals, etc.). Funds to build this kind of infrastructure may have a term to maturity of twenty or thirty years, reflecting the period over which benefit will be realized from such investments. Preconditions for responsible long-term borrowing include: stable, predictable, and adequate revenues to support repayment of debt; and management and financial capacity to use debt responsibly. Borrowing is a powerful tool for good or bad: it increases the positive impact of wise decisions and good management and increases the potential for harm due to bad management. In many places, legislation is unclear when it comes to local governments’ borrowing powers, and as to remedies, recourse, collateral, and covenants available to investors in connection with borrowing. A sound legal and regulatory framework for local government borrowing should be a national priority in such cases, and it must take multiple perspectives into account, including that of prospective borrowers and lenders.

Loans vs. municipal bonds A local government can borrow for infrastructure investments either by taking a loan, typically evidenced by a promissory note, which specifies among other things, the principal amount, interest rate, and date of repayment, or by issuing municipal bonds. To take a loan, the local government would negotiate with a lender, or a consortium of lenders, for the use of their money for a period of time. A loan agreement or promissory note would specify the principal amount, the interest rate, and one or more dates for repayment. While such notes can be bought and sold, their size and complexity limits the range of potential buyers, and the original lender often intends to hold the loan obligation until maturity. Municipal bonds are tradable obligations issued by local governments or other subnational entities. Bonds amount to a series of smaller promissory notes in fixed amounts, intended to be traded in the secondary market. Bonds are more attractive to fund managers than loans because they can be sold or bought in increments as an investment portfolio evolves. In some places, a local government sells bonds directly to investors at an auction or through private placement. In others, an issuer will arrange with an underwriter or syndicate to buy all of the bonds at an agreed-upon closing date. This guarantees the local government will receive the full amount needed for its planned investments.

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As a rule, municipal bonds are more complicated and expensive in terms of transaction costs, when compared to a similarly sized loan, although these costs may be offset by better interest rates from a larger range of interested investors. Below a certain issue size, there may be no investor interest in a bond issue, or it may be easier for the local government to borrow the money in the form of a loan. From a local government’s point of view, the decision as to the form of debt often comes down to a question of whether the potential cost savings justify the time and expense of a bond issue. Today, some local governments are issuing, or considering the issuance of, green bonds, SDG bonds, social bonds, and various other thematic instruments. These instruments are like ordinary municipal bonds, except that their proceeds are committed to particular expenditures that are seen as attractive to some investors. Potential investors and rating agencies have agreed on guiding frameworks for some types of thematic bonds, but not all. Local governments interested in issuing thematic bonds should be prepared to identify clear goals and demonstrate that they can measure how the planned investments will meet those goals. Despite the NUA’s commitment to supporting innovative and sustainable financing instruments, there are as of yet no “NUA bonds” on the horizon.

Primary vs. secondary markets The primary market refers to the issuance of new municipal bonds, while the secondary market deals with the sale and purchase of bonds previously issued. From a local government perspective, secondary market transactions are not directly relevant – once a bond is issued, it does not matter who ends up owning the obligation. The local government will pay interest and principal to whomever owns the obligation,39 and with today’s electronic bookkeeping, physical bonds seldom change hands. Disclosure and transparency regulations are aimed at ensuring that a potential investor has access to material information about a bond issuer, its management, the transaction, and the risks involved, all of which a reasonable person would want to know in order to make an informed investment decision. A sophisticated underwriter or financial institution lending to a city or buying its debt instruments wholesale may do its own due diligence and ask the right questions, but a small investor in the secondary market does not have the clout, time, or inclination to engage with an issuer to ask questions about its financial strength and management, investigate the terms of various agreements, and discern what risks are involved. In South Africa, municipal borrowers must disclose all information that may be material to a prospective investor and must take reasonable care to ensure the information disclosed is accurate.40 This investor-oriented transparency is different than but nicely complements the NUA statement emphasizing “the importance of improving the transparency of data on spending and resource allocation as a tool for assessing progress towards equity and spatial integration.”41

Financing the New Urban Agenda 29 Pledges and covenants In connection with municipal borrowing, whether in the form of loans or bonds, it is common for local governments to make various pledges and enter into covenants with lenders or investors. The purpose of these arrangements, from the lenders’ point of view, is to increase the likelihood of repayment. Reducing the lender’s risk should decrease the cost of borrowing. Note that the ability of a local government to enter into such pledges depends on the enabling legislation. Physical and financial assets, tax and tariff revenue streams, and intergovernmental grants or transfers can all be pledged. Many of the physical assets of a local government have limited value to a creditor – there is typically limited value that could be realized from the repossession and sale of a street or a town hall, and many jurisdictions have laws that prohibit mortgaging a public facility. However, some assets do have commercial value, and a pledge could be useful collateral to investors. Subject to enabling legislation, any unencumbered assets of a local government can be pledged to secure repayment of the debt. Reserve funds, sometimes created out of borrowed proceeds, are common. These funds serve two functions: first, they can bridge financing gaps in the event some unforeseen occurrence leads to a temporary shortfall in pledged revenues. Second, they serve a “tripwire” function, whereby other actions are required if the reserve fund is tapped, for the protection of the bondholders.42 Tax and tariff revenue streams are arguably the most significant comparative advantage of local government borrowers, as opposed to corporate borrowers. Local governments often have the power to levy taxes, to set tariffs, and to otherwise control their own income. Revenues from particular taxes or special levies can be pledged, and rate covenants can be given to ensure that rates are maintained at a sufficient level to repay a loan. In some jurisdictions, legal difficulties can arise if the covenant is seen as contracting for a legislative act such as the imposition of a tax. Again, subject to enabling legislation, intergovernmental grants or transfers can be pledged to repay borrowing. Because the future availability of these grants and transfers is a matter for national legislatures, investors are aware that they could be reduced in a national financial crisis or because of policy changes. Some security arrangements contract for interception of grant funds by an unpaid creditor, but other jurisdictions have outlawed these mechanisms.

General vs. special obligation municipal debt General obligation debt is payable from any revenues available to the local government, including general tax revenues. By contrast, special obligation debt is a limited liability obligation with specified revenue streams pledged to debt repayment, such as the revenues generated by a water utility or by incremental taxes in an urban renewal district. There may be occasions where it is advantageous to the local government to limit its exposure to the potential revenues from a specific project, and an investor may be willing to take the risk, for a higher interest rate.

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Concluding remarks While adequate financing is essential in pursuing the goals of the NUA, it is not enough. Although decentralization has been fashionable in development circles for more than three decades, national governments are often reluctant to encourage genuinely autonomous and self-financing local governments because it means ceding political power, sometimes to an opposition party. And although decentralization theory posits that local government is responsive to local community needs, many local governments are deeply distrusted by urban residents. A perception in many developing countries is that politicians seek public office not to serve the community, but rather to enrich themselves, their friends and families, and their political allies. This is relevant because the NUA, like other great policy pronouncements of our time, requires active community engagement at both the national and local level.43 Community oversight and engagement is necessary to guide our cities’ development and especially how development is financed.

Notes 1 U.N. Conference on Human Settlements, Vancouver Declaration of Human Settlements, U.N. Doc. A/CONF.70/15 (1976), ¶ I(1)(d). 2 U.N. Conference on Human Settlements (Habitat II), Istanbul Declaration of Human Settlements, 8–9, 102, U.N. Doc. A/CONF.165/14 (1996). 3 G.A. Res. 71/256*, annex, New Urban Agenda (Dec. 23, 2016), ¶ 15(c)(iv). 4 See Chantal Thomas, Income Inequality and International Economic Law: From Flint, Michigan to the Doha Round, and Back, Cornell Legal Studies Research Paper 19-08 (2019). 5 In South Africa, municipal tax authority is explicit in the Constitution. S. AFR. CONST., 1996 § 229 (“[A] municipality may impose: (a) rates on property and surcharges on fees for services provided by or on behalf of the municipality; and (b) if authorized by national legislation, other taxes, levies and duties appropriate to local government or to the category of local government into which that municipality falls, but no municipality may impose income tax, value-added tax, general sales tax or customs duty.”). By contrast, India is an example of a constitution that is somewhat problematic in this regard. While the 74th Amendment recognized municipalities as a third tier of government in 1993, it left their finances to the states. INDIA CONST., amended by The Constitution (Seventy-Fourth Amendment) Act, 1992. And, from 2017, municipal finances faced another challenge after Goods and Services Tax (GST) legislation abolished many local taxes, without providing municipalities a share of the GST, again leaving that to the states. 6 In the Philippines, the Constitution provides that “each local government unit shall have the power to create its own sources of revenue and to levy taxes, fees and charges, subject to such guidelines and limitations as the Congress may provide.” CONST. (1987), art. X (emphasis added); Section 129 of the Local Government Code goes further and provides that “each local government unit shall exercise its power to create its own sources of revenue and to levy taxes, fees, and charges subject to the provisions herein, consistent with the basic policy of local autonomy.” Philippines Local Gov. Code, Book II, Title I, §129 (1991) (emphasis added).

Financing the New Urban Agenda 31 7 In Pakistan, local revenue authority is rooted in provincial legislation: Chapter XI of the Balochistan Local Government Act V of 2010 provides for a local property tax, at a rate to be set by the “Metropolitan Corporation, Municipal Corporation and Municipal Committee, as the case may be.” The Balochistan Local Government (Amendment) Act, No. 5 of 2010, THE GAZETTE OF PAKISTAN EXTRAORDINARY, May 10, 2010. 8 For example, in South Africa, while Section 229(1)(a) of the Constitution authorizes municipalities to impose property taxes (“rates”), and the parameters are set by the Municipal Property Rates Act, the actual tax rates, categories and exemptions are established through local rates policies (Section 3 of Local Government: Municipal Property Rates Act, no. 6 of 2004) and by-laws (Section 6 of Local Government: Municipal Property Rates Act, no. 6 of 2004) adopted by local Councils. 9 G.A. Res. 71/256*, supra note 3, ¶ 5. 10 See Inge Kaul, et al., Global Public Goods: A Concept For Framing the Post-2015 Agenda?, Duetsches Institut für Entwicklungspolitik (2013). 11 G.A. Res. 71/256*, supra note 3, ¶ 126. 12 DAVID RICARDO, ON THE PRINCIPLES OF POLITICAL ECONOMY AND TAXATION (3rd ed., 1821). 13 The implication that it is better to build, rather than to leave land in its natural state, may be controversial, but popular distaste for speculators who hold unproductive land remains. 14 BasicEconomics, Milton Friedman: Is Tax Reform Possible? (Q&A), YOUTUBE (Apr. 28, 2012), www.youtube.com/watch?v=PhI4WQqrct8. 15 S. AFR. CONST., 1996 § 229 (“No municipality may impose income tax, valueadded tax, general sales tax or customs duty.”) But municipalities are given the constitutional right to tax property and impose surcharges on fees for services provided by or on behalf of the municipality. Id. 16 Economists are divided as to the extent to which individuals actually adjust their consumption patterns in relation to such taxes. See, e.g., Hunt Allcott, et al., Ramsey Strikes Back: Optimal Commodity Tax and Redistribution in the Presence of Salience Effects 88–92 (Nat’l Bureau of Econ. Research, Working Paper No. 24233 (2018), www.nber.org/papers/w24233.pdf. 17 Hansjörg Blöchliger & Oliver Petzold, Finding the Dividing Line Between Tax Sharing and Grants: A Statistical Investigation (OECD, Working Papers on Fiscal Federalism No. 10, 2009), https://doi.org/10.1787/22265848. 18 For example, as of March 2019, sales in the city of Denver, Colorado are subject to a State sales tax of 2.9%, a Regional Transportation District sales tax of 1.0%, a Scientific and Cultural Facilities District sales tax of 0.1%, and a Denver City sales tax of 4.31%, for a total of 8.31%. 19 Jonathan Halpern, et al., Pricing, Subsidies, and the Poor: Demand for Improved Water Services in Central America (1999), http://elibrary.worldbank.org/ content/workingpaper/10.1596/1813-9450-2468; J.A. Lampietti, et al., People and Power: Electricity Sector Reforms and the Poor in Europe and Central Asia, WORLD BANK (2007), http://documents.worldbank.org/curated/ en/424271468038116529/People-and-power-electricity-sector-reforms-andthe-poor-in-Europe-and-Central-Asia. 20 The originally announced package included 6,000 liters of water per household per month, and 50 kilowatt hours per month of electricity. In practice, South African municipalities vary in the levels of free basic services they provide. 21 How Do I Access Free Basic Municipal Services?, SOUTH AFRICAN GOVERNMENT, www.gov.za/faq/government-services/how-do-i-access-free-basic-municipalservices.

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22 See Anthony Levitas, Local Government Reform as State Building: What the Polish Case Says About Decentralization, 51 STUDIES IN COMP. INT’L. DEVELOPMENT, 23–44 (2017). 23 See Blane Lewis & Paul Smoke, Intergovernmental Fiscal Transfers and Local Incentives and Responses: The Case of Indonesia, 38 FISCAL STUDIES 111 (2017). 24 G.A. Res. 71/256*, supra note 3, ¶ 14(a). 25 Id. at ¶ 14(b). 26 LINCOLN INST. OF LAND POLICY, FINANCING METROPOLITAN GOVERNMENTS IN DEVELOPING COUNTRIES 66 (Roy W. Bahl, et al. eds., 2013). 27 Id. 28 Gandhi and Pethe cite the Bangalore Metropolitan Region, where master plans for the region “included those prepared by the Bangalore Development Authority, Bangalore Metropolitan Region Development Authority, Bangalore Mysore Infrastructure Corridor Planning Authority, Bangalore International Airport Area Planning Authority, etc.” The various plans are prepared in isolation, and often conflict. Sahil Gandhi & Abhay Pethe, Emerging Challenges of Metropolitan Governance in India, 52 ECON. & POL. WEEKLY 27, 59 (2017) 29 New Urban Agenda, supra note 3 ¶¶ 13, 30, 52. 30 New Urban Agenda, supra note 3 ¶¶ 1–29. 31 ROBBIE PARKS, ET AL., IMPERIAL COLLEGE LONDON, EXPERIENCES AND LESSONS IN MANAGING WATER FROM CAPE TOWN (Grantham Institute Briefing Paper No. 29, 2019), http://hdl.handle.net/10044/1/67992. 32 Portions of this discussion are based on the author’s contributions to a report. The South African Urban Agenda: Municipal Infrastructure Finance Summary Report (World Bank Report No. 48511, 2019), http://documents.worldbank. org/curated/en/699681468101975754/South-African-urban-agendamunicipal-infrastructure-finance-summary-report. 33 Connection fees are one form of development charges and are sometimes also known as capital cost recovery fees. 34 For a low-income end user entitled to subsidized services, the relevant unit of government would pay some or all of the capital cost recovery fee. 35 Piped systems are the most cost effective, but they often do not reach people in urban slums and informal settlements. A recent UNESCO study notes that, “[t]here is cause for concern that a significant proportion of unserved and underserved urban residents in vulnerable situations are not counted (‘below the radar’) in current methods used for estimating service coverage. There are many generic urban settings where this is apparent, including the peri-urban areas of large cities (which include intra-urban slums and low-income areas), and the secondary urban centers, small towns and large villages where a significant proportion of the urban population resides.” U.N. WATER, THE UNITED NATIONS WORLD WATER DEVELOPMENT REPORT: LEAVING NO ONE BEHIND, 48 (2019). 36 RANA DASGUPTA, CAPITAL: THE ERUPTION OF DELHI (2014). 37 For a useful typology of subsidies, see KRISTIN KOMIVES, ET AL., WORLD BANK, WATER, ELECTRICITY, AND THE POOR: WHO BENEFITS FROM UTILITY SUBSIDIES? (2005). 38 See, e.g., OLGA KAGANOVA, GUIDEBOOK ON CAPITAL INVESTMENT PLANNING FOR LOCAL GOVERNMENTS, WORLD BANK (2011); WORLD BANK, MUNICIPAL FINANCES: A HANDBOOK FOR LOCAL GOVERNMENTS (Farvacque-Vitkovic, et al. eds., 2014); JUSTIN MARLOWE, ET AL., CAPITAL BUDGETING AND FINANCE: A GUIDE FOR LOCAL GOVERNMENTS (2009). 39 The obligation to pay interest is sometimes separated from, and traded separately from, the obligation to pay principal. When the interest coupons are separated from the principal obligation, this is called a stripped bond. 40 Municipal Finance Management Act No. 56 (2003) §49(1) (South Africa).

Financing the New Urban Agenda 33 41 G.A. Res. 71/256*, supra note 3, ¶ 136. 42 In South Africa, municipalities have sometimes been asked to borrow twice what they need for the actual infrastructure investment, with half of the proceeds then being invested to realize the principal of the loan at maturity, thus protecting investors’ capital (but not the interest). 43 A recent book by Raghuram Rajan, a financial markets expert who governed the Reserve Bank of India and was Chief Economist at the International Monetary Fund, warns of the dangers of societies dominated by the twin pillars of markets and state power, without active community involvement. RAGHURAM RAJAN, THE THIRD PILLAR: HOW MARKETS AND THE STATE LEAVE THE COMMUNITY BEHIND (2019).

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The New Urban Agenda, metropolitan challenges, and municipal autonomy in Brazil Lilian Regina Gabriel Moreira Pires

Introduction The population contingent in urban environments has grown rapidly, and forecasts for the future suggest that by 2050 this urban concentration will reach the level of 66% of the world’s population.1 The New Urban Agenda (NUA) creates guidelines for sustainable development for the next twenty years. Of course, these guidelines are intrinsically linked to the United Nation’s Sustainable Development Goals (SDGs) and the right to the city. In addition, the NUA brings urban planning and metropolitan governance as important tools to ensure effective sustainable development through the performance of public actors. Cities have several issues, which arise from the individualized problems of each one of the localities, since urban centers have expanded and each problem has become particularized, being part of a collection of complexities that demands corresponding solutions. The processes of urbanization present an abyss of contradictions, and the complexities, inserted in scales of power, are often divergent and antagonistic, such as local, national, and regional. In any case, besides the power scales, there are multiple agendas, such as environmental and human rights agendas, which are part of urban concerns, and the chance of overlap between them is almost a natural consequence, a plexus of realities that needs a solution. Disordered growth was the driving force for urban agglomerations, which gradually became conurbation, with subsequent installation of the metropolitan fact. In this sense, it is important to understand which metropolitan fact presents itself from a city nucleus or pole, which is the epicenter of activities (i.e., citizens of neighboring cities work and use the city services epicenter, since in their own city there is none). Therefore, the pole has economic strength and also suffers from externalities, resulting in repercussions on the quality of services provided and on quality of life, with an increase in crime. In Brazil, it is of particular importance to recognize that metropolitanism is a reality. After all, more than half of the Brazilian population (56.5% or 117.2 million) lives in only 5.6% of its 310 municipalities, which each contain at least 100,000 inhabitants.2

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With this, in cities, old and new problems are a reality whose solutions cannot continue with the mark of segregation and exclusion. This time, we must assure mechanisms exist that guarantee basic rights, democratization of cities, and services, as well as the redemption of the dignity of large numbers of citizens. Due to this need to rescue dignity, special attention is needed to avoid the incentive of unequal accumulation, extreme nationalism, and the growth of antimigratory movements. This is because meeting the provisions of the city pact depends on the removal of these exclusions, in order to crown the right to the city and the daily exercise of democracy. The success of this task lies in cooperation among local, regional, and national power scales. The collaborative pact among power scales, strengthened and adjusted, is a precious tool for the fulfillment of sustainable development that is part of the NUA, marking the concern for the city and its people. Governance, an instrument through which the collaborative pact is feasible, is a necessary measure for the integration and action of metropolitan municipalities (local government) and state or regional government aimed at systematizing sectoral policies of common interest. In addition, governance presents the important function of establishing mechanisms that stimulate social participation and, consequently, effective monitoring of the cooperative process by its recipients. Thus, with integrated projects, effective dialogue, and transparency, we will have the triad: governance, transparent action, and control. For no other reason, cooperation between different spheres is an important point for overcoming challenges, with a view to implementing strong governance and guaranteeing the fulfillment of responsibilities for the development and effectiveness of humane, democratic, and sustainable cities. This chapter analyzes the Brazilian reality with regard to the federalism of cooperation. This context presents the challenges of overcoming the dichotomy between local/regional interest, and implementing metropolitan governance, as a way of sharing experience, seeking, and encouraging solutions to the realization of the right to the city.

Brazilian reality and the metropolitan fact In Brazil, according to recent Brazilian Institute of Geography and Statistics (IBGE) data, 60% of Brazilian municipalities have rural classification.3 However, the urban population is close to 80%.4 Uncontrolled growth and migration from the countryside to the city were the zero point of what we call metropolitan fact.5 In Brazil there are sixty-nine metropolitan regions that together hold 444 municipalities.6 It should be noted that Brazilian urbanization began in the 1930s and was marked by inequality, and a strong movement in defense of the right to the city emerged from this fact. We have previously discussed this issue and noted as follows: In this way, a fight was launched in defense of the right to the city, decent housing, transportation, and other quality public services. This is so true that

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Lilian Regina Gabriel Moreira Pires in January 1985, the National Movement for Urban Reform (MNRU) was created to “reduce levels of social injustice in the urban environment and promote greater democratization of city planning and management . . . Civil society organizes itself by recording its criticism and denunciation of the framework of social inequality. This new social ethic politicizes the discussion about the city and formulates a discourse and political platform for the urban social movements, in which the access to the city must be a right to all its residents and not a restriction to few or the rich ones. The banner of urban reform is consolidated not only in the perspective of the articulation and unification of social movements through an urban platform that goes beyond local issues and covers national issues, but also in the criticism of the spatial inequality of the dual city. The result of the demands materialized in the Federal Constitution (CF) with the insertion of the chapter on urban politics, which represented the beginning of the affirmation of the struggle of the organized society.7

Because of this struggle and the organization of society, Brazil’s Federal Constitution of 1988 (Constitution) dedicated a chapter for urban policy, with the objective of ordering full development of the social functions of the city and guaranteeing the well-being of its inhabitants.8 In order to regulate the constitutional provision, Federal Law No. 10,257/2001, known as the City Statute, was created, resulting in several instruments that allow intervention in urban development.9 In the legislative sequence, Federal Law No. 12,587/201210 was then created to establish the National Urban Mobility Policy, and Federal Law No. 13,089/2015,11 the Metropolis Statute, establishing general guidelines for planning, management and execution of public functions of common interest in metropolitan regions. Concerning the metropolis, what we call a metropolitan fact is a consequence of the unbridled and disorderly growth of cities, where the urban footprint is formed and its physical limits defined only by administrative registration, not corresponding to actual human activities. Metropolitan regions are very densely populated places where there are great social problems, public health problems, issues of mobility, quality of life, development, and security, and a profound lack of dialogue. The lack of coordination and complementarity in state performance results in uneven growth and causes segregation and an absence of democratic opportunities. Consequently, this scenario is crowned by the lack of public confidence in government decisions and does not induce individual collaborative behavior. Commonly, a core municipality functions as a center of attraction, which is economically robust, but also suffers from externalities caused by its position. This central nucleus is where the neighbors are driven because of the strong economy, the possibility of employment, and for the use of services that do not exist in their city of origin. Despite proximity and dependence, political decisions are isolated in each of the municipalities that integrate the metropolitan region, resulting in disconnection and the ineffectiveness of the services provided.

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Federative structure and competence division The distribution of competence is a striking feature of Brazil’s federal states.12 The Constitution, which defines the political-administrative organization in the Union, States, and municipalities, adopts federalism noting that “States that join the federation lose their sovereignty as soon as they get in, while preserving limited political autonomy.”13 Brazil elected a vertical distribution of competence, but not hierarchical construction based on the predominance of interests. Thus, the Union is responsible for issues of general interest; States are focused in regional matters; and municipalities focus on matters of local interest. In relation to the Federal District, due to the express provision in Article 32, Paragraph 1 of the Constitution, state and municipal powers are generally accumulated.14 The Brazilian reality is that the Federation has 5,568 municipalities, plus the Federal District and the State District of Fernando de Noronha.15 Most of the Brazilian municipalities (68.4%) have up to 20,000 inhabitants and only have 15.4% of the country’s population (32.1 million inhabitants), while a little more than half of the Brazilian population (57.0% or 118.9 million inhabitants) live in only 5.7% of the municipalities.16 For the first time in the Brazilian constitutional history, the municipality has been elevated to the category of federated entity, assigning a set of competences to it. Municipal autonomy in our system is recent and is in the process of consolidation. It currently faces a diversity of obstacles and problems, which derive from the competence of other entities of the Federation, especially from the States and from budgetary and technical limitations.

Union competences The powers of the Union are divided into legislative and non-legislative. Regarding the power to legislate, there are the exclusive competences of the Union and concurrent ones, in this case, the Union is responsible to issue general rules.17 General urban norms should indicate the direction and path for urban development, presenting the instruments of its execution, with the purpose of achieving the quality of life. Regarding the competences of the Union, it is worth noting that if the Union does not legislate on a certain subject through general rules, States and the Federal District may do so freely. But if the Union establishes general rules, States and the Federal District may legislate only on specific interests, never contradicting the general rule.

State competences Article 25, Paragraph 1, of the Constitution reserves to the States the competences that are not prohibited by law, in addition to those concurrent ones already mentioned.18 Article 25, Paragraph 3, in turn, determines the competence of

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the States, through a complementary law, to establish metropolitan regions, urban agglomerations, and micro-regions, constituted by groups of neighboring municipalities, to integrate the organization, planning, and execution of “public functions of common interest.”19

Competences of municipalities, local interests, and common interests Article 30 of our Constitution addresses municipal competences. Paragraph 1 references the competence of the municipality to legislate on subjects of local interest.20 However, the Constitution’s drafters did not define “local interest.” It is, therefore, an indeterminate legal concept, which must be interpreted in specific cases.21 Diogo de Figueiredo Moreira Neto synthesized the identification of the local interest, according to the understanding of several authors: With these doctrinal approaches one can already tabulate some elements that can identify the local interest of the municipalities: 1 2 3 4 5 6 7 8

predominance of the site (Sampaio Doria); inner cities and towns (Black); that can be isolated (Bonnard); territorially limited to the municipality (Borsi); without external repercussions to the municipality (Moukheli); own neighborhood relations (Jellinek); simultaneously opposed to regional and national (legal); dynamic (Dallari).22

In fact, the so-called local interest should be examined according to the specific case, with observance of the moment and need for the service or activity to be rendered. It should be said that such services and activities may be exclusively of local interest or, also, regional interest, due to circumstances beyond the municipal boundaries. Of course, there are situations where there are activities and services, which for its definition or execution, co-exist with other interests of a set of municipalities, requiring a State action, under the terms of Article 25, Paragraph 3 of our Constitution. Caio Tácito teaches: The concept of common interest, to be assessed by the state legislature through a political judgment of value, overrides the primary concept of local interest, which qualifies municipal competence. The complementary state law, which establishes the metropolitan region, affirms the close correlation of interests that, in benefit of the principle of continuity, productivity and efficiency, makes unitary and coordinated, in its own entity, according to the complementary law, the management of services and activities originally assigned to the local administration. The state avocation of ordinarily

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municipal matter does not violate the autonomy of the Municipality insofar as it is based on a constitutional norm, that is, in a norm of the same hierarchy. It is the Constitution itself that, at the same time, affirms and limits municipal autonomy. The effectiveness of the supplementary law establishing the metropolitan region therefore lacks consent or prior consent of the municipality whose services are part of the common competence concentrated in the regional administration.23 At the moment when the Constitution institutes regional figures from Metropolitan Regions, activities and services of common interests should automatically be treated in a non-exclusive way. In other words, municipalities and States are linked in this obligation and will share ownership and management of the socalled public functions of common interest. Alaôr Caffé Alves teaches: Here, the original granting power of common services or functions are the Municipalities and the State, since only these have legislative bodies to govern over the public services of regional interest. However, through a legislative council (obtained through the exercise of common competences and complementary and supplementary competitions), these political entities may and should, by constitutional requirement, create the conditions for the intergovernmental administrative public organization (a kind of multifunctional territorial autarchy) for the beholder (derived) from the exercise of powers relating to public functions of common interest. It is worth it to say that the State creates and organizes such a public administrative entity, by means of a complementary law, but cannot leave, under penalty of unconstitutionality of the measure, to admit the participation of the metropolitan Municipalities (or members of the urban agglomerations or microregions) to decide on the subject’s regional organizations which, in the last instance, are also in their interests (local).24 The ownership and management of the so-called public functions of common interest will be shared between the State and municipalities.25 The reason for this is that municipalities alone will not have the capacity to provide services. This reality is the point of transition between the local interest of the municipality and the regional interest of the State; that is, the real situation is the change of interest, which imposes a shared solution among the members of the metropolitan region.26 All of this is due to what is mentioned in Article 25, Paragraph 3 of the Constitution.27 Functions should be explicitly included in complementary law, and instituting this law presupposes a technical criterion meticulously analyzed to achieve the functions of common interest. Each State, in establishing metropolitan regions, must determine technical criterion that to consider the political plane, reflecting the peculiarities of each State, should be considered as public service in the common interest. Therefore, the result will be the regulation of common service through the law.

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It is important to note that the creation of the metropolitan region is in the field of discretionary State competence, but the decision will be a reflection of technical parameters of study results. Once it is decided what will be understood as of common interest,28 there will be a linkage29 to the existing rule.30

Brazilian metropolitan governance The changes brought about by the Constitution came unaccompanied by guidelines on an objective criterion for the establishment of metropolitan regions. This lack of constitutional clarity resulted in the creation of some fictitious regions; that is, metropolitan regions that in fact did not possess the foundations for designation. The country has sixty-nine metropolitan regions, but not all have the concrete socio-spatial process of truly metropolitan character.31 This reflects a purely political-institutional vision that is disconnected from the metropolitan reality. In other words, Brazil has regions with only metropolitan nomenclature. We cannot deny, however, that Brazil has robust legislation that regulates urban management: the City Statute, the Urban Mobility Policy, and the Metropolis Statute. In the constitutional and legislative fields everything seems well designed, although the application of the rules requires skillful tools, resources and, above all, political will. In this sense, the Constitution sets a path toward common services, which cannot be provided in a parochial and independent way by municipalities.32 After all, if they are provided, it will have an impact on neighboring cities, shifting the effectiveness of the interests of the local/regional population. The Constitution also established that Brazilian municipalities have political, administrative, and financial autonomy. Political autonomy appears in the capacity of self-organization with the elaboration of organic laws and with the prerogative to elect political representatives to legislative and municipal executive powers. Administrative autonomy is centered on management of local businesses, and organization of public services, and territory. Financial autonomy is the ability to institute and collect taxes and manage the budget, and is a precondition for the exercise of other activities, insofar as the municipality depends on the availability of financial resources. The main sources for municipalities’ collection is based on the IPTU – Real Estate and Urban Tax, ISS – Tax on Services, and ITBI – Tax on Real Estate Transmission Not Upon Death. However, the possibility of instituting and collecting taxes does not guarantee necessary financial autonomy. The chronic dependence on federal and state transfers is difficult. In 2016, approximately 81.7% of Brazilian cities did not generate even 20% of their own revenues, reflecting the chronic dependence on federal and state transfers.33 It is clear that there is a contrast between budget shortfalls and full autonomy. There is a predominance of small municipalities, which, according to IBGE data from 2017, consists of approximately 207.7 million inhabitants living in 5,568 municipalities, plus the Federal District and the State District of Fernando

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de Noronha .34 Fifty-six and a half percent of the Brazilian population is in 5.6% of municipalities (310), with more than 100,000 inhabitants; forty-two municipalities have a population of more than 500,000 inhabitants, and about 68.3% of the municipalities have fewer than 20,000 inhabitants and only have 15.5% of the population of the country. Most Brazilian cities are small and have a limited collection capacity to meet all their necessary obligations, among which are: solid waste management and water resources, basic sanitation, collective transport of passengers, planning and control of the use of the parceling, and the occupation of the urban ground, among others. Besides that, there is the facet of the lack of structure and training of Brazilian municipality technical staff. Municipal public servants often have low qualifications; many do not even have tertiary education. The combination of high expenses, low collection capacity, and lack of training of the technical staff all check municipal autonomy. One way to break municipal difficulties that was presented as the beginning of a virtuous process was Federal Law 13,089, of January 13, 2015 – Statute of the Metropolis – that outlined a way of minimizing the problems of the management of the regions.35 It establishes: [G]eneral guidelines for the planning, management and execution of public functions of common interest in metropolitan regions and in urban agglomerations instituted by States, general standards on the integrated urban development plan and other instruments of interdepartmental governance, and criteria for the Union’s support for actions involving inter-federative governance in the field of urban development.36 The law clearly established the prevalence of metropolitan interests over local ones, guided democratic management, interdepartmental governance, and the shared implementation of public functions of common interests. In addition, the law created a series of instruments for the realization of integrated urban development, which should be part of an integrated urban development plan (Plan), forcing adaptation by local master plans. Managing the organization of metropolitan common services involves planning, control, supervision, and execution, all of which are materialized in the Plan, and for this reason the law originally imposed guidelines and deadlines for its realization. Although the prevalence of the metropolitan interest is evident, there is an emblematic issue of difficulty implementing metropolitan governance, in part because municipal competencies are centered on municipal autonomy where responsibility is of local or municipal interest. This tension creates inertia in solving problems that afflict citizens who live (and suffer) in the metropolis, resulting in a lack of efficiency in both the treatment of services rendered and the realization of the right to a city in a democratic and just way. It is not enough to discuss the ways jurisdiction makes it difficult to implement governance, as ongoing measures to deal with the issue are shameful. Federal Law No. 13,683 of June 19, 2018 revoked various provisions of the Metropolis

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Statute, depriving it of its concreteness and possibility of action, removing the deadline for elaborating on an integrated development plan, and withdrawing the consequent sanction of the public agents involved.37 The Metropolis Statute starts a real path to metropolitan governance – timid, but at least the Statute posed the problem and created space for discussion and search for solutions to metropolitan-scale issues.38 Prior to the Metropolis Statute, Public Consortium Law No. 11,107 of April 6, 200539 and Decree No. 6.017 of 200740 were published, allowing entities of the Federation to join a public consortium constituted either by public association or by legal entities under private law. The arrangement of a public consortium requires the adhesion of the political entity by amending the law of each of the municipal legislatures that adopt it, and there is no compulsory membership. Therefore, municipalities belonging to a metropolitan region have no obligation to participate, and the arrangement requires the common sense and will of mayors who agree to establish the deal with the common services they share.

The NUA and the necessary implementation of metropolitan governance The metropolis has intense economic potential and to the same extent many problems caused by externalities. Therefore, in order to achieve harmony and balance in sustainable development, it is urgently necessary to search for ways to solve problems of common interest. Allied to this, the result of the metropolitan fact is the existence of the core municipality that carries the burden of the metropolitan process, although it alone cannot impose or find solutions to serve the population of the set of municipalities that gravitate towards it. Therefore, the use of governance instruments is the way to efficiency and to the democratization of policies that have significant results for the population. Specifically, in the Brazilian case, the metropolitan region is not a political unit, but rather an arrangement that must conform to the federalist system with all its complexity. The path involves an understanding of what we call metropolitan identity; that is, all members of the metropolitan group should assimilate to the idea of common services. As mentioned before, the metropolitan governance instrument will result in good management, and to achieve this, we believe in two institutional paths that can be used: first, the creation of a legal entity in the form of territorial autarchy or the creation of public consortia structured in the agreement;41 and second, it is necessary to establish and create a network for the management process. The Metropolis Statute presents a basic structure: Article 8 – The interdepartmental governance of metropolitan regions and urban agglomerations shall comprise in its basic structure: I – executive body composed of representatives of the Executive Branch of the federal entities that are part of the urban territorial units;

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II – collegiate deliberative body with representation of civil society; III – public organization with technical and consultative functions; and IV – integrated system of resource allocation and accountability.42 The Statute dispels other considerations to conclude that the law determines an executive and deliberative collegiate structure, and that executive authority, with decision power, will be composed of representatives of the State and all the member municipalities of the region. In the event of an electoral tie, the matter shall be resolved in a public hearing, the installation period of which must be previously fixed in the institutional law.43 The importance of the existence of a metropolitan plan is clear in order to make the analysis of the common services belonging to that group possible. And, in the same step, it takes will to create an environment for discussion and negotiation, with a departure from individualized personal and political desires. The NUA calls for and imposes the construction and adoption of a shared management of services of common interest between States and municipalities, for the achievement of sustainable development. The articulation among federal, state, and local government must be effective, including the implementation of metropolitan plans that establish dialogue and synergy among the actors for all urban areas involved. These metropolitan plans must be in line with municipal master plans that encourage popular participation. Raising awareness among public managers is mandatory to understand that governance in the metropolis is the instrument that will guarantee the democratization of spaces, and also enable the sustainable development and the rescue of citizenship. Therefore, the alert and incentive for the promotion of inter-federative cooperation, with stimuli for dialogue in the construction of metropolitan urban policy, was clearly and directly brought in the NUA resolution.44

Conclusion The disarticulation of local and regional urban scales is a reality that needs to be addressed. In order to comply with the NUA, it is necessary to promote interfederative cooperation, with incentives for dialogue in the construction of metropolitan urban policy. Therefore, it is important to coordinate between metropolitan plans and municipal master plans, in a way that creates a synergy and results in a multilevel government, in accordance with the direction of the NUA45 and with positive results to cities. In addition to law, technical training, solutions for financial resources for the urban infrastructure, and sharing of information technologies and management are necessary. It is important to raise the awareness of public managers involved in metropolitan management in order to make commitments to implement actions necessary to achieve quality of life, democratization of spaces, and opportunities in metropolitan cities.

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In sum, metropolitan governance is a fundamental instrument for the recovery of citizenship and the means to break the imbalance of political power and absence of social participation. From that understanding, we will have positive results that will directly affect people’s quality of life – democratizing spaces, bringing opportunity, and enabling real sustainable development.

Notes 1 Relatório da ONU mostra população mundial cada vez mais urbanizada, mais de metade vive em zona urbanizadas ao que se podem juntar 2,5 mil milhões em 2050. CENTRO REGIONAL DE INFORMAÇÃO DAS NAÇÕNES UNIDAS, www.unric.org/pt/ actualidade/ (last visited Apr. 21, 2019). 2 IGBE divulga as populacionais dos municípios para 2017, AGÊNCIA IBGE NOTÍCIAS (Aug. 31, 2018), https://agenciadenoticias.ibge.gov.br/agencia-sala-de-imprensa/ 2013-agencia-de-noticias/releases/16131-ibge-divulga-as-estimativas-popula cionais-dos-municipios-para-2017. 3 Classification and Characterization of Rural and Urban Spaces of Brazil, INSTITUTO BRASILEIRO DE GEOGRAFIA E ESTATÍSTICA, www.ibge.gov.br/apps/rural_urbano (last visited Apr., 2019). In the typology proposed in this study, 76.0% of the Brazilian population is found in predominantly urban municipalities, accounting for only 26.0% of the total municipalities. Most of the Brazilian municipalities were classified as predominantly rural (60.4%), with 54.6% as adjacent rural and 5.8% as remote rural. 4 Id. 5 LILIAN REGINA GABRIEL MOREIRA PIRES, REGIÃO METROPOLITANA: GOVERNANÇA COMO INSTRUMENTO DE GESTÃO COMPARTILHADA BELO HORIZONTE/MG (2018). The metropolitan fact consolidated and, as a result, the complexity of collective life in the metropolis became increasingly antagonistic insofar as it produced wealth and increased inequalities. The junction of the urban fabric altered pre-defined concepts of the municipalities, which are: (i) territorial limit; (ii) public services with restricted and delimited scope; and (iii) economic and cultural separation. In this context, the urban reality called the “metropolitan region” arose and with it the great dilemmas of metropolitan urban planning, which involves several difficult questions, such as space between conurbated municipalities, mobility, protection of springs, quality of life, and others. 6 Diana Paula de Souza, Brasil tem três novas regiões metropolitanas, AGÊNCIA IBGE NOTÍCIAS, https://agenciadenoticias.ibge.gov.br/agencia-noticias/2012-agenciade-noticias/noticias/9868-brasil-tem-tres-novas-regioes-metropolitanas (last visited May 10, 2019). 7 Antonio Cecílio Moreira Pires & Lilian Regina Gabriel Moreira Pires, Estado e Mobilidade Urbana, in MOBILIDADE URBANA: DESAFIOS E SUSTENTABILIDADE 7–8 (Lilian Regina Gabriel Moreira Pires trans., 2019 (2016), http://cidadeemmovi mento.org/wp-content/. 8 CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION] art. 182 (Braz.). The urban development policy, implemented by the municipal government according to general guidelines established by law, aims to order the full development of the social functions of the city and ensure the well-being of its inhabitants. Paragraph 1. The master plan, approved by the City Council, mandatory for cities with more than 20,000 inhabitants, is the basic instrument of the policy of development and urban expansion. Paragraph 2. Urban property fulfills its social function when it meets the fundamental demands of city ordination expressed in the master plan.

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Paragraph 3. Expropriations of urban real estate will be made with prior and fair compensation in cash. Paragraph 4. The municipal public authority, by means of a specific law for an area included in the master plan, is required, under federal law, to require the owner of urban land not built, underutilized or unused, to promote its proper use, under penalty, successively, in: I – compulsory subdivision or construction; II – progressive urban and territorial property tax over time; III – expropriation with payment of public debt securities issued, previously approved by the Federal Senate, with a redemption term of up to ten years, in annual installments, equal and successive, secured the real value of the indemnity and legal interest. Id. 9 Lei No. 10.257, de 10 de Julho de 2001, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 11.07.2001 (Braz.). 10 Lei No. 12.587, de 3 de Janeiro de 2012, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 04.01.2012 (Braz.). 11 Lei No. 13.089 de 12 de Janiero de 2015, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 13.01.2015 (Braz.). 12 José Joaquim Gomes, Canotilho, in DIREITO CONSTITUCIONAL E TEORIA DA CONSTITUIÇÃO 68 (Almedina ed., 7th ed. 2018). (Lilian Regina Gabriel Moreira Pires trans., 2019). Canotilho teaches: The ordering function of normative acts is not only based on a hierarchy of the same through relations of infra-ordination, but also on a spatial division of competences. The hierarchical principle emphasizes the negative nature of higher normative acts in relation to lower normative acts: the principle of competence presupposes a positive delimitation, and certain bodies include the substantive regulation of certain subjects (e.g., autonomous regions to legislate on matters of specific interest to the region). The principle of competence points to a plural view of the legal system. This is not limited to state planning, because in articulation with it there are regional, local, and institutional structures. In any case, it does not disturb the principle of hierarchy and the hierarchical configuration of the juridical-constitutional order. It does, however, highlight an important aspect of plural orders: the existence of autonomous normative spaces. This justifies the legislative and regulatory powers, for example, of autonomous regions in matters of specific interest to the regions (cf. article 229, a, b, and c) and the regulatory power of local authorities (article 242). In turn, the idea of the state order as a general order will justify the supplementation of the State’s law with respect to the normative powers of regional or local systems. Finally, it is also the principle of competence to justify the regulation of certain subjects by certain bodies, thus forming blocks of reserved powers of certain subjects. 13 DALMO DE ABREU DALLARI, ELEMENTOS DE TEORIA GERAL DO ESTADO 227 (Saraiva ed., 11th ed. 1985). 14 See CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION] art. 32, ¶ 1 (Braz.). 15 IGBE divulga as Estimativas de População dos municípios para 2018, AGÊNCIA IBGE NOTÍCIAS (Aug. 29, 2018), https://agenciadenoticias.ibge.gov.br/agenciasala-de-imprensa/2013-agencia-de-noticias/releases/22374-ibge-divulga-asestimativas-de-populacao-dos-municipios-para-2018. 16 Dados do IBGE: https://agenciadenoticias.ibge.gov.br/agencia-sala-de-imprensa/ 2013-agencia-de-noticias/releases/22374-ibge-divulga-as-estimativas-de-popu lacao-dos-municipios-para-2018, consulta abril de 2019. 17 See CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION] art. 22 (Braz.). The single paragraph admits the hypothesis of a complementary law to authorize (delegate) to the States to legislate on matters established in the article in question.

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18 See CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION] art. 25, ¶ 3 (Braz.). 19 Id. 20 Lucia Valle Figueiredo, Competências administrativas dos Estados e Municípios, 207 REVISTA DE DIREITO ADMINISTRATIVO 1, 2 (1997). In Article 30, in deciding on the competence of the municipality to legislate on matters of local interest, in addition to establishing a concurrent jurisdiction, also established, although indirectly, a specific competence, if the matter is of exclusively local interest. 21 HELY LOPES MEIRELLES, DIREITO MUNICIPAL BRASILEIRO 322 (Malheiros ed., 13th ed. 2013). “The criteria of local interest is always relative to that of other entities. If the interest of the Municipality in relation to the Member State and to the Union, such matter and the competence of the Municipality, prevails. . . . The assessment of municipal competence over local public services is therefore to be made in each specific case, making the criterion of the predominance of interest rather than that of exclusivity, given the circumstances of place, nature and purpose of service.” Id. 22 Diogo de Figueiredo Moreira Neto, Poder concedente para o abastecimento de água, 1 REVISTA DE DIREITO DA ASSOCIAÇÃO DOS PROCURADORES DO NOVO ESTADO DO RIO DE JANEIRO 61, 66–67 (1999). The parenthetically cited authors include Antonio de Sampaio Dora (Brazilian politician and educator); Roger Bonnard (French jurist); Umberto Borsi (Italian jurist); Michel Moukheli (GeorgianFrench political scientist and jurist:); Georg Jellinek (German public lawyer); and Adilson Abreu Dallari (professor at Pontifícia Universidade Católica de São Paulo). 23 Caio Tácito, Saneamento básico—região metropolitana—competência estadual, 213 REVISTA DE DIREITO ADMINISTRATIVO 323, 324 (1998). 24 Alaôr Caffé Alves, Regiões Metropolitanas, aglomerações urbanas e microrregiões novas dimensões constitucionais da organização do Estado Brasileiro, 4 REVISTA DIREITO AMBIENTAL 184 (1999). 25 Entendimento do Superior Tribunal Federal- STF, na ADIN 2.809—RS NA AÇÃO DIRETA DE INCONSTITUCIONALIDADE. REGIÃO METROPOLITANA. INTERESSES COMUNS. PODER LEGISLATIVO ESTADUAL. LEGITIMIDADE. MUNICÍPIOS LIMÍTROFES. LEI COMPLEMENTAR. VÍCIO FORMAL E MATERIAL NA LEI. INEXISTÊNCIA. INOBSERVÂNCIA AO ARTIGO 63 DA CONSTITUIÇÃO FEDERAL. ALEGAÇÃO IMPROCEDENTE. 1. Região metropolitana. Municípios limítrofes. Observância do disposto no artigo 25, § 3o, da Carta Federal, que faculta ao estado-membro criar regiões administrativas compostas de municípios limítrofes, destinadas a regular e executar funções e serviços públicos de interesses comuns. 2. Criação de regiões metropolitanas. Exigência de lei complementar estadual. Inclusão de município limítrofe por ato da Assembleia Legislativa. Legitimidade. Constitui-se a região administrativa em um organismo de gestão territorial compartilhada em razão dos interesses comuns, que tem no Estadomembro um dos partícipes e seu coordenador, ao qual não se pode imputar a titularidade dos serviços em razão da unidade dos entes envolvidos. Ampliação dos limites da região metropolitana. Ato da Assembleia Legislativa. Vício de iniciativa. Inexistência STF—Tribunal Pleno, ADIN 2.809 RS. Rel. Min. Mauricio Correa, j. 25.9.2003, DJ 30.4.2004. 26 Hely Lopes Meirelles notes that the solution adopted in large cities, such as Paris, Los Angeles, San Francisco, Toronto, London, and New Delhi, was the establishment of a unified service area – Metropolitan Region. The author also notes that the complexity and the high cost of works and services of an intermunicipal nature do not allow municipal governments to carry them out in isolation, because it is not a local interest, but a regional one, capable of affecting the State and, not infrequently, the Union. See Lopes Meirelles, supra note 20, at 82–83. 27 See CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION] art. 25, ¶ 3 (Braz.).

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28 ADI 1842 formulated the following concept: public functions of common interest, unmistakable with those of exclusively local interest, correspond, therefore, to a set of interdependent state activities carried out in the physical space of a territorial entity created by complementary state law that unites neighboring municipalities related by links of reciprocal communion. S.T.F., 0001873-20.1998.1.00.0000, Relator: Min. Luiz Fux, 06.03.2013, 181, DIÁRIO OFICIAL DA UNIÃO [D.O.U.], 16.09.2013 (Braz.). 29 We repeat Mariana Mencio’s note: The fact that the laws link the creation of Metropolitan Regions, urban agglomerations, and microregions to technical criteria does not mean that we are facing technical discretion. Although part of the doctrine is to be a discretionary action, based on technical appreciation, we adopt the position of Maria Sylvia Zanella Di Pietro. The technical assessment does not characterize the administrator’s choice but the exercise of tied competence, since it restricts the manifestation of the will of the legislator to the technical parameters of the law, proven in studies and opinions. Mariana Menico, O regime jurídico do plano diretor das regiões metropolitanas 233 (2013) (unpublished doctorate dissertation, Pontifícia Universidade Católica de São Paulo). 30 As an example, we note the “Estado de São Paulo editou a Lei Complementar n. 760/1994, estabelecendo diretrizes para a organização regional. A par disso, editou-se também a Lei Complementar no 1139/2011, reorganizando a Região Metropolitana de São Paulo, baseada na indigitada Lei Complementar no 760/1994, prevendo em seu art. 12 que o Conselho de Desenvolvimento especificará as funções públicas de interesse comum ao Estado e aos Municípios da Região Metropolitana do Estado de São Paulo. Observe-se, ainda, que o art. 3o, do Capítulo VI—Das Disposições Transitórias da Lei Complementar no 1.139/11 determina que enquanto o Conselho de Desenvolvimento não especificar as funções públicas de interesse comum, prevalecerão as compreendidas nos seguintes campos funcionais: i) planejamento e uso do solo; ii) transporte e sistema viário regional, iii) habitação; iv) saneamento ambiental; v) meio ambiente; vi) desenvolvimento econômico; vii) atendimento social; viii) esportes e lazer . . .” Região metropolitan: governança como instrumento de gestão compartilhada. See Moreira Pires, supra note 5, at 113–14. 31 Diana Paula de Souza, Brasil tem três novas regiões metropolitanas, AGÊNCIA IBGE NOTÍCIAS (Feb. 1, 2018), https://agenciadenoticias.ibge.gov.br/agencia-noticias/ 2012-agencia-de-noticias/noticias/9868-brasil-tem-tres-novas-regioes-metro politanas. 32 Common services will be defined by the Complementary Law that created/ instituted the metropolitan region. 33 Mário Cesar da Silva Andrade, Dependência financeira dos Municípios brasileiros: entre o federalismo e a crise econômica, 16 REVISTA ESPAÇO ACADÊMICO 71, 77 (2016). 34 AGÊNCIA IBGE NOTÍCIAS, supra note 2. 35 Lei No. 13.089 de 12 de Janiero de 2015, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 13.01.2015 (Braz.). 36 Id. 37 Lei No. 13.683 de 19 de Junho de 2018, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 20.06.2018 (Braz.). 38 The Fund creation was vetoed and the economic and financial environment removed from providing support for effective management. 39 Lei No. 11.107 de 6 de Abril de 2005, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 07/04/2005 (Braz.). 40 Decreto No. 6.017, de 17 de Janiero de 2007, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 18.01.2007 (Braz.).

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41 Decreto-Lei No. 200 de 25 de Fevereiro de 1967 art. 5o, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 27.02.1967 (Braz.). For the purposes of this law, the following are considered: I – Autarchy – the autonomous service, created by law, with legal personality, property and own income, to perform typical Public Administration activities, which require, for its better functioning, decentralized financial. Id. 42 Lei No. 13.089 de 12 de Janeiro de 2015, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 13.01.2015 (Braz.). 43 See Moreira Pires, supra note 5, at 165. 44 Resolution adopted by the General Assembly on December 23, 2016. http:// habitat3.org/wp-content/uploads/New-Urban-Agenda-GA-Adopted-68th-Ple nary-N1646655-E.pdf 45 G.A. Res. 71/256*, annex, New Urban Agenda ¶¶ 90, 96, 149 (Dec. 23, 2016).

4

The role of law in relation to the New Urban Agenda and the European Urban Agenda A multi-stakeholder perspective Christian Iaione and Elena De Nictolis

The increasing role of cities at the international and European policymaking levels The economic power of cities on the one hand and the impact of global economic phenomena on cities on the other are great concerns of urban analysis. Urbanization is an emerging trend, and it is both a potentiality and a factor of crisis. Urbanization has helped populations escape poverty through increased productivity, employment opportunities, and large-scale investment in infrastructure and services. The United Nations (U.N.) estimates that 54% of the global population lives in cities.1 Cities’ roles are increasing from many standpoints. One of the main factors of cities’ growth is economic. Cities are engines of both production and consumption of goods and services, and are a major source of economic production and growth. Eighty percent of global gross domestic product (GDP) is currently accounted for by cities, and their contribution to national income is sometimes greater than their share of the national population.2 This might result in cities rivalling nation-states in power and influence.3 By 2030, people living in large cities will account for as much as 81% of global consumption. By the same date, global urban consumption is expected to grow by $23 trillion with 3.6% compound annual growth rate.4 This growth in consumption will be likely concentrated in thirty-two cities.5 The vision of the city enshrined in the New Urban Agenda (NUA) is that of a sustainable urban development, that aims at ending poverty and achieving an inclusive urban prosperity,6 similar to the vision expressed by the U.N.’s 2030 Agenda for Sustainable Development. The NUA is closely related with the U.N.’s 2030 Agenda and the Sustainable Development Goals (SDGs), although the connections between the two global agendas are only informal.7 This vision is expressed with a right to the city approach, in particular when the NUA establishes that: We share a vision of cities for all, referring to the equal use and enjoyment of cities and human settlements, seeking to promote inclusivity and ensure that all inhabitants, of present and future generations, without discrimination of any kind, are able to inhabit and produce just, safe, healthy, accessible,

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Christian Iaione and Elena De Nictolis affordable, resilient and sustainable cities and human settlements to foster prosperity and quality of life for all. We note the efforts of some national and local governments to enshrine this vision, referred to as ‘right to the city’, in their legislation, political declarations and charters.8

The NUA brings opportunities and challenges for urban policy and practice in light of the implementation of SDG 11, “Cities and Communities.”9 The city model designed by the NUA is close to the urban model designed by the scholarship on the sustainable city. A key emerging feature related to the increasing relevance of cities at the global level is their capacity to foster multi-stakeholder urban governance or “urban co-governance” approaches to address complex urban challenges. This is reflected both in literature on urban co-governance and in the NUA. This chapter advances the hypothesis that the right to the city approach, endorsed by the NUA through its sustainable urban development vision, can be locally implemented not just by including references to the “right to the city” in legislation10 but also through urban co-governance. This entails the adoption of a multi-stakeholder approach stressing the role of public actors, private actors, non-governmental organizations (NGOs), and urban citizens that the NUA foresees in some of its provisions. We will investigate how this approach can be implemented through the analysis of the Urban Agenda for the European Union (EU), which foresees a co-governance approach for cities to realize a sustainable and inclusive urban development and supports the creation of urban innovation partnerships that are multi-stakeholder (public-community and public-private community partnerships). The chapter provides examples of how the NUA and Urban Agenda for the EU’s vision can be achieved by cities11 through urban law12 and publiccommunity partnerships.

The NUA and Urban Agenda for the EU’s commitment to urban co-governance The concept of urban co-governance is deeply rooted in literature. It builds on theories of new public governance as a model of public management that overcomes the “public administration and management” approach13 and the new public management focused on efficiency.14 The central pillars of new public governance (or networked governance)15 are coordination, the multi-stakeholder approach, and centrality of public policies as opposed to politics (which of course raises risks of de-politicization). New public governance implies that public administration implements public policies through cooperation and building partnerships with for-profit and not-for-profit actors, relying upon existing networks.16 The literature identifies two possible roles for the State in those partnerships: 1) a partnership based on total equality of the actors, where the State does not have a role of coordination; and 2) a partnership based on differentiation of roles, where the democratic legitimacy of the State as a representative institution is recognized, recovering a different role.17

A multi-stakeholder perspective in relation to the European Urban Agenda 51 The debate on new public governance is still open, and the adaptation of the model of public administration is generating interesting developments, emerging mostly from studies of the chances offered by technological development to realize an open and participatory government18 and the studies on the legal infrastructure of collaborative governance within the administrative state.19 Collaborative governance was in fact defined as “a governing arrangement where one or more public agencies directly engage non-state stakeholders in a collective decision-making process that is formal, consensus-oriented, and deliberative and that aims to make or implement public policy or manage public programs or assets.”20 Urban co-governance has been identified as a central design principle for the governance of the city as a commons.21 The definition of urban cogovernance proposed here is based on sharing, collaboration, and polycentrism. This intuition is based on the argument that we can observe different governance devices according to different degrees of a governance matrix based on the actors involved, the type of partnerships they are involved in, and the object of the governance arrangements established (i.e., small-scale resources versus large-scale resources or infrastructures).22 This operationalization of urban co-governance entails the application of multi-stakeholder processes to the decisions on and management of urban commons. Policies and projects addressing the urban commons entails dimensions of active citizenship and forms of co-governance23 with different degrees and intensities. In the NUA, multi-stakeholder partnerships clearly emerge as a way to implement its objectives. The NUA is committed to promoting “the systematic use of multi-stakeholder partnerships in urban development processes, as appropriate, establishing clear and transparent policies, financial and administrative frameworks and procedures, as well as planning guidelines for multi-stakeholder partnerships.”24 Also, the NUA values the role of urban citizens as urban actors, although according to some scholars it seems to be largely undervalued.25 The NUA refers to “citizen-centric” digital-governance tools to implement technological innovations, and it enhances the role that urban renewal strategies based on urban resources, for instance cultural heritage, can play in strengthening citizenship and participation.26 Paragraph 149 of the NUA states: We will support local government associations as promoters and providers of capacity development, recognizing and strengthening, as appropriate, both their involvement in national consultations on urban policies and development priorities and their cooperation with subnational and local governments, along with civil society, the private sector, professionals, academia and research institutions, and their existing networks, to deliver on capacitydevelopment programs.27 The urban dimension is becoming increasingly relevant in the EU policy landscape, too. The efforts of European institutions and civil society organizations to focus the attention of many policy silos on their urban dimensions culminated in the adoption of the Pact of Amsterdam in 2016 and the Urban Agenda for the

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EU. The Urban Agenda for the EU considers among its priorities the inclusion of migrants and refugees, urban poverty, housing, urban mobility, and sustainable use of land. The European Commission (EC) seems to have developed a strong capacity to anticipate trends and scenarios concerning cities and provided a number of supporting tools and actions.28 The fruitful interaction between EU institutions and European cities has great potential to make cities laboratories for experimenting and applying solutions to future challenges. This can be true particularly for legal tools that allow for implementation of innovative forms of urban partnership to promote sustainable urban development. This commitment of the EC is global and connected to the NUA in particular. The EC indeed leads a group of international organizations such as the Organization for Economic Co-operation and Development (OECD), the World Bank, Food and Agriculture Organization (FAO), International Labour Organization (ILO), and UN-Habitat, committed to developing a global, peoplebased definition of cities and rural areas, a commitment formally undertaken at the Habitat III Conference in Quito, Ecuador in 2016.29 The movement towards forms of urban co-governance seems to emerge also in the 2016 Urban Agenda for the EU, where it emphasizes the role of different cities’ actors in solving crucial social and economic issues. The NUA and Urban Agenda for the EU both recognize the importance for cities to foster multistakeholder collaboration. This often requires the State, or city administrations, to act as enabler. Among the ways that cities can act as enabling platforms for co-governance is by providing capacity building. The Urban Agenda for the EU recognizes “the potential of civil society to co-create innovative solutions to urban challenges, which can contribute to public policy making at all levels of government and strengthen democracy in the EU,”30 stating: [i]n order to address the increasingly complex challenges in Urban Areas, it is important that Urban Authorities cooperate with local communities, civil society, businesses and knowledge institutions. Together they are the main drivers in shaping sustainable development with the aim of enhancing the environmental, economic, social and cultural progress of Urban Areas. EU, national, regional and local policies should set the necessary framework in which citizens, NGOs, businesses and Urban Authorities, with the contribution of knowledge institutions, can tackle their most pressing challenges.31 We will analyze how the Urban Agenda for the EU implements a multi-stakeholder approach towards sustainable urban development by analyzing the work of the fourteen Urban Partnerships constituted within the Agenda. The Urban Partnerships include representatives of Member States, cities, city networks such as Eurocities or International Council for Local Environmental Initiatives (ICLEI), EU urban programs, namely Urban Innovative Action (UIA) and URBACT, investors such as the European Investment Bank, policy experts, and other academic and professional experts in topics that the specifc partnership addresses.

A multi-stakeholder perspective in relation to the European Urban Agenda 53

The role of the Thematic Partnerships established under the Urban Agenda for the EU in implementing strategic objectives of the NUA The Urban Agenda for the EU identifies fourteen Thematic Partnerships (TPs) as the key delivery mechanism within the Urban Agenda for the EU, similarly to the NUA.32 The aim of the TPs, as defined by the Urban Agenda for the EU, is to develop a “multilevel and cross-sectoral governance approach” and to promote “a strong involvement of practitioners from Urban Authorities.”33 Their working method is strongly inspired by urban experimentalism, supporting the adoption of a bottom-up approach based on “concrete cases in Urban Areas which exemplify bottlenecks and potentials.”34 It is mostly through partnerships that the Urban Agenda for the EU implements its multi-stakeholder approach towards urban governance. The TPs are discussed as follows: The inclusion of migrants and refugees TP implements the provisions of the NUA that suggest that migrants and refugees in cities present both a challenge and an opportunity to revitalize urban economies and commit to supporting local authorities in establishing frameworks that enable the positive contribution of migrants to cities.35 The TP recommended microfinance for migrant entrepreneurs and agreed to create a five-city scheme with the European Investment Fund (EIF) that could help identify financial intermediaries in the five cities. The TP on climate adaptation, and the TP on air quality advance the NUA and Urban Agenda for the EU priorities strongly connected to the inclusion of migrants and refugees: the promotion of sustainable urban development through quality of urban environment and fight against climate change. Environmental protection as a pillar of sustainable development is addressed by the Charter of Fundamental Rights of the European Union,36 and the NUA stresses the role of cities in ensuring air quality as one of the most important health-related services that cities deliver to their inhabitants.37 The final action plan of the TP on air quality produced a code of good practice for designing and implementing Air Quality Plans.38 This provides useful guidance to improve the efficiency of air quality measures’ selection and governance while safeguarding compliance with EU legislation, and guidance for financing air quality plans, identifying, integrating, and improving traditional and innovative financing schemes dedicated to the implementation of air quality measures.39 The TP on housing contributes to improve the policies to provide an adequate housing, as suggested by the NUA, which addresses the role of cities in relation to housing in Paragraphs 13(a), 31, 33, and 105, designating a “right to adequate housing as a component of the right to an adequate standard of living.”40 The TP on circular economy is concerned with how to reduce the waste produced by cities. The issue is addressed by the NUA through the commitment to improve the sustainable management of natural resources (i.e., land, water, forests, and food) in a way that considers urban-rural linkages, and facilitates the transition towards a circular economy that is economically and environmentally sustainable.41 The TP is committed to promoting environmentally sound waste

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management and to substantially reducing waste generation through reduction, re-use, recycling, minimizing landfills, and converting waste to energy,42 leveraging urban citizens’ behavioural changes. Sustainable land use and nature-based solutions are focused on conservation of natural resources and sustainable use of land, containing the phenomena of urban sprawl. This is a key issue in terms of urban planning,43 to which the NUA gives a peculiar operationalization by specifying that in order to fight urban sprawl, cities need to promote sustainable use of land as well as a mixed social and economic uses.44 One of the actions identified by the TP Action Plan “Identifying and Managing Under-Used Land”45 specifically provides that cities promote the creation of collaborative partnerships among public, private, and social actors and other stakeholders that could be interested in the process. The TP on urban mobility addresses a very important issue for the NUA, which advocates for a sustainable and innovative urban mobility system. The actions provided by the partnership’s action plan support multilevel cooperation and governance.46 The Energy transition TP and digital transition TP are two central issues of the NUA promoting the role of urban citizens and other actors in their implementation. The NUA indeed prioritizes “smart-grid, district energy systems and community energy plans to improve synergies between renewable energy and energy efficiency.”47 The initiatives presented here, as well as the EC’s programmatic lines, show how multi-stakeholder collaboration is a key strategic component of the Urban Agenda for the EU and how public procurement is identified as a key factor to foster sustainability and resilience in cities, as well as equitable urban growth, to be carried out through the TP on innovative and responsible public procurement.48 The NUA stresses the importance of public procurement, specifically to support tech-enabled “shared mobility services” and “community energy plans to improve synergies between renewable energy and energy efficiency.”49 The Urban Agenda for the EU highlights the strategic importance of public procurement and procurement of innovation from a governance point of view, as they constitute management tools that cities can use to address social and environmental challenges. The Urban Agenda for the EU contemplated the possibility for the establishment of new TPs. Among the recently established TPs, one of the more relevant is the TP on culture and cultural heritage, which will address tourism, creative and cultural industries, transformations, adaptive reuse, financial sustainability, interdisciplinary approaches for governance, and innovative financing in a cultural heritage-based urban development.50 The conservation of cultural heritage in cities and the promotion of cultural expression is extensively addressed in the NUA,51 which highlights the city’s role as leverage for community-based economic development, building a strong connection between urban policies for the conservation of cultural heritage and cultural diversity promotion and the creation of a sustainable urban economy.52 This issue in the Urban Agenda for the EU is addressed also through the TP on jobs and skills in the local economy,

A multi-stakeholder perspective in relation to the European Urban Agenda 55 focused on how to provide skills to city residents and increase the productivity of the labor force, framed by NUA through capacity development,53 a key step towards an inclusive urban economy. Finally, another TP recently created is the one on security and public space. Its recently released Orientation Paper proposed an understanding of urban security as a complex issue that covers various forms of crime as well as actual and perceived security.54 The overall review of these Thematic Partnerships shows how the Urban Agenda for the EU implements NUA objectives from a multi-stakeholder perspective in European cities and where it emerges more clearly. The following two sections will be dedicated to a focus on two TPs as exemplary case studies of an advanced stage of implementation of the approach of urban co-governance to crucial policy domains: housing and public procurement.

The EU Thematic Partnership on housing The issue of the capacity of cities to provide adequate housing, although not a direct responsibility of the EU, is increasingly under its attention.55 The lack of investment in housing in the EU has been estimated at around 57 billion Euro per year.56 The public housing model and the social housing model based on collaboration between public and private actors show weaknesses in the EU.57 Housing is difficult to access for increasingly broader sections of the population – i.e., young people who lack economic support from their families, the unemployed, the elderly, migrants, single parents, and people with disabilities.58 The answer provided by Member States to the crisis is fragmented; some States fostered urban renewal, whereas others have reduced the forms of support and financing.59 The framework of the role of cities toward ensuring adequate housing for its inhabitants is integrated by the declaration of cities for adequate housing60 and the report of the U.N. special rapporteur, Leilani Farha: “adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context.”61 The Urban Agenda for the EU implemented the concept of adequate housing by developing the concept of a housing continuum62 that includes public housing, social housing, and private real estate market regulation. Adequate housing is operationalized as the creation of a housing offer tailored to the different capacities and needs of city inhabitants, to avoid turning cities into exclusionary human settlements. Moreover, the design of adequate housing policies is aimed at creating the conditions that enable investments to make housing accessible and to deliver, alongside housing, not just residential services but also opportunities to access basic services that satisfy human rights and access to job opportunities in the city. This goal can be achieved through cooperation among different stakeholders, leveraging collaborative housing approaches, and co-governance models of housing complexes which put the community of residents in a managing role under a plurality of financial and legal models. As anticipated, to speak of social infrastructures, such

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as housing, it means to refer to an infrastructure that realizes a service of social protection. But these are also urban infrastructure platforms that can integrate other public services based on the principles of innovation and sustainability: from collaborative services to individuals to electric and sustainable mobility, from distributed electricity production to the creation of new forms of work, incubation of companies, and other forms of co-production, digital or otherwise. The housing TP seems to suggest that cities that really want to provide the housing service in a manner appropriate to the needs of the inhabitants of their city will have to do it through innovative public policies, whose economic sustainability mechanisms will have to be generated through pilot projects conducted in those cities that increasingly will have the ability and foresight to experiment. The TP policy approach seems to stimulate operators of the housing sector to innovate the forms of management of human settlements, investing more on practices and solutions rooted in sharing, collaboration, and cooperation among the inhabitants, reattributing to human co-existence its original nature of a resource produced by a social relation and a collective action. The Final Action Plan recognizes that community land trusts have proven to make valid contributions to securing building ground for affordable housing and that EU funding and financing instruments can be helpful in the development of such instruments as preconditions to find the building ground needed for affordable housing schemes. In this way, the housing TP aims to implement one of the crucial commitments noted in the NUA’s Paragraphs 14(a) and 107. As a matter of fact, Paragraph 14 (a) supports “providing equal access for all to physical and social infrastructure and basic services, as well as adequate affordable housing.” And Paragraph 107 promotes commitment to a wide range of affordable, sustainable housing options, by establishing that: We will encourage developing policies, tools, mechanisms, and financing models that promote access to a wide range of affordable, sustainable housing options, including rental and other tenure options, as well as cooperative solutions such as co-housing, community land trust, and other forms of collective tenure, that would address the evolving needs of persons and communities, in order to improve the supply of housing. . . . This will include support to incremental housing and self-build schemes.63 Among the legal and administrative bottlenecks hampering community-led housing projects, as identifed by the Final Action Plan of the housing TP, are multiple responsibilities, the lack of co-ownership models (i.e., housing cooperatives, tenants’ organizations, creation of not- for-proft housing associations), and fnancing. Several cities in Europe are indeed promoting experimentation of legal and fnancing tools for co-housing such as community land trusts, both through local policy programs and EU-supported urban experiments. We will discuss examples of both. The Urban Innovative Action (UIA) initiative recently funded several urban experiments on co-housing or community land trusts that were taken into considerations by the TP:

A multi-stakeholder perspective in relation to the European Urban Agenda 57 First, the Budapest (Hungary) project “E-Co-Housing. Co-creating a Regenerative Housing Project Together with the Community”: here the city will initiate a process of co-creation of a collaborative and regenerative (sustained by circular economy) housing community (approximately 100 residents). The site of the project will be a multi-story prefabricated modular construction, with different unit sizes to house different-sized families (e.g., single-parent, doubleincome large families, disabled and elderly couples, etc.).64 Second, the Mataró (Spain) project “Yes We Rent!” will generate an accessible housing stock targeting medium-income households using empty privately owned properties.65 The city will offer a guaranteed rent and financial and organizational support to renovate properties in exchange for renting below market prices. Additionally, Yes We Rent! will test an organizational model of a multistakeholder co-op, which can be publicly funded and controlled, while drawing on the empowerment and self-management potential of cooperatives. Tenants will be trained and incentivized to engage in self-help, joint development of housing-related services, and recruitment of new flats. Third, the Brussels (Belgium) project “CALICO, Care and Living in Community” is an urban experimentation aimed at addressing the housing crisis in Brussels, specifically for vulnerable groups (e.g., migrants, ageing population, single-mother families) through the creation of a community land trust (CLT).66 The land and communal areas will be acquired by the CLT, which will provide thirty-three homes for eighty-eight people, offering both social rental housing and affordable ownership. The mechanism of the CLT will secure the permanent affordability of the housing units. The building will be organized in three community-led co-housing clusters, each of them focused on a different vulnerable group. The residents will be involved right after their identification by the city in the design of the informal mutual care system and the co-governance of the housing complex itself. It will also develop a system of intergenerational and intercultural care, to empower and reinforce the autonomy of vulnerable individuals and families, which will also be stimulated to provide support to other residents of the building. Fourth, the Lyon (France) “Home Silk Road” project aims to change the housing paradigm by placing immediately vulnerable groups in a housing complex placed in a central area of the city to show how they can bring societal and economic value to their district.67 Several national and local legislations of EU Member States and cities influenced the content and approach of the TP as well. The Mataró, Spain’s “Yes We Rent” project and other pilot experiments such as the Athens (Greece) project “Curing the Limbo”68 are similar to the approach and projects devised by the City of Barcelona. The Barcelona policy on housing increased the stock of affordable housing in Barcelona through promoting the role of the inhabitants themselves and the creation of a system of collaboration between the city, civic, and private actors. In its housing plan approved in 2015, Barcelona provides for the “co-housing program,”69 a new model that gives communities the “right of use” on buildings or brownfields for long periods and provides measures to enhance

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the growth of the public housing stock. The city implemented a system of economic incentives (including city-guaranteed rent) and disincentives addressing private property in order to promote affordable housing.70 The city also assigned five urban spaces to cooperatives through a public contest to promote co-housing initiatives.71 France, for instance, is at the forefront of normative innovation to enable community-led housing. In France we can observe the emergence of a variety of legal tools to regulate the role of communities of residents in housing projects, and generally collaborative housing processes, under an umbrella of collaborative housing, “habitat participatif.”72 The French legal framework presents legal structure options for cohousing: a co-ownership regime, the copropriété des immeubles or a corporate legal structure, a Civil Society Real Estate structure, the Société Civile Immobilière d'Attribution (SCIA), or a construction cooperative, a Société Coopérative de Construction (SCCC). In 2014, the Loi ALUR73,74 introduced the concept of “habitat participatif ” alongside two legal tools, the residents cooperative and the society of attribution and self-promotion (cooperative d’habitants et la société d’attribution et d’autopromotion), an evolution of the copropriété des immeubles. The Loi ALUR also introduced the CLT model through the organismes de foncier solidaire (OFS), not-for-profit organizations aimed at acquiring and managing land to provide affordable collective housing, in the Code de l’urbanisme75 and a new form of lease that OFSs can use, the bail reel solidaire (BRS), introduced in the Code de la construction et de l’habitation (CCH). The city of Lille was the first to implement an innovative approach towards affordable housing using an OFS based on a public-social partnership. Members of the OFS Lille are The Foundation of Lille, the City of Lille, the Metropolitan City of Lille, and the federation of real estate developers of the Northern region, the Union Régionale pour l'Habitat Hauts-de-France and Action Logement.76 The OFS buys the land with the help of a sixty-year loan from the Caisse des Dépôts, then sells the apartments while retaining the ownership of the whole property, rented at a below-market price. The purchaser of the apartment, approved by the OFS according to the purchaser’s low income, holds the right to use the housing through a solidarity lease (the aforementioned BRS) for 80/99 years and may resell it at the initial purchase price, indexed.77

The EU Thematic Partnership on innovative and responsible public procurement The literature on urban innovation points to innovative procurement practices that overcome the business as usual Public-Private-Partnership (PPP) model as fundamental schemes to foster a sustainable long-term innovation on public infrastructure and service.78 Moving towards partnerships that involve civic society actors, citizens, and local communities, starting from the pre-procurement phase allows the risk of investing in innovative services and infrastructures to be shared by multiple actors. Introducing end-users in the procurement process allows the development of collaborative and innovative solutions that target local challenges

A multi-stakeholder perspective in relation to the European Urban Agenda 59 and needs. The Urban Agenda for the EU TP on innovative and responsible procurement (abbreviated hereafter for clarity as UATPIRP) has tapped into the potential of these public-private-people, public-community, or public-social schemes by analyzing new institutional, legal, and policy frameworks that could foster innovation through procurement.79 The partnership was constituted with the task of researching innovative approaches to procurement. The action plan of the UATPIRP advocates for the introduction of: innovation procurement brokers . . . offering concrete support to public buyers and public administrations willing to exploit the full potential of the EU Directives on procurement which grant room for the experimentation of newly conceived public partnerships with the private or social sector and local communities especially at the urban level . . . as well as procedures to enable the co-design of such social and digital innovation partnerships and innovative procurement solutions.80 The action plan of the UATPIRP calls on innovation procurement brokers both at the local and national level to: involve civil society and local communities in the co-creation of innovative solutions to urban challenges by establishing a pilot project possibly in cooperation with the Urban Innovative Actions Initiative aimed at (i) raising awareness on the social and digital innovation partnerships by convening EC officials, city officials and economic, social and community operators to discuss for this purpose; (ii) seeding transfer policy exercises through knowledge sharing between public authorities especially at the urban and local level and initiate policy experimentations for this purpose to disseminate model contracts for social and digital innovation partnerships pursuant to an adaptive methodological protocol; (iii) promoting the drafting of soft law at the EU level to provide city and public officials with procurement guidelines enabling partnerships for social and digital innovation through urban innovative actions.81 This approach is coherent with the overall EU Public Procurement strategy, corroborating a legal basis for public-private-community or public-private-people partnerships and public community partnerships, known as Urban Innovation Partnerships. As a matter of fact, EU Directives clearly state that their rules are intended to support “[r]esearch and innovation, including eco-innovation and social innovation.”82 According to the directives, they should be “among the main drivers of future growth and have been put at the centre of the Europe 2020 strategy for smart, sustainable and inclusive growth.” And that is why the 2014 legislative package includes a contractual tool called Innovation Partnerships. This new legal tool seems to have been narrowly interpreted as aimed

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only at digital innovation. Practice, especially in cities, has demonstrated that Innovation Partnerships can extend to encompass social innovation initiatives and social-digital innovation initiatives, such as many of the cases which public community partnerships fall under. Also, the EU Directives recognize the principle of self-organization and public cooperation. Finally, the EC has started a stakeholder consultation to gather suggestions on the scope of guidance on green and social procurement and the issues it should address, including “how to best integrate the demand-side function for social innovation and social entrepreneurship.”83 It is important to understand the challenges that surround formation of innovative procurement practices and the connections that exist among the different practices, such as public-community/social partnerships, innovation brokers, urban labs, and Chief Science Officers (CSOs).84 Local administrations often encounter challenges when it comes to designing and implementing innovative co-governance practices. Inherent in this reflection is the necessity to transform the roles of the different urban actors of the multi-stakeholder partnerships. Many EU cities, in particular Spanish and Italian cities, have implemented urban laws and regulations experimenting with co-governance innovative and responsible public procurement practices. Italy presents several cases studies that are particularly innovative, and some of them even inspired other European cities, in some cases in a sort of regulatory wave or regulatory race towards the urban commons. This results in a comprehensive and critical analysis allowing mutual learning among cities, and a range of legal tools are emerging in this scenario at the global level. For example, the Italian Code of Public Contracts approved in 2016 allows for administrative barter or social partnerships, with interventions pursuant to the principle of horizontal subsidiarity. Bologna pioneered model regulations for the co-governance of the urban commons, which is being replicated by many other Italian cities.85 Naples has recognized a right to civic and collective use of the urban commons, while the city of Reggio Emilia issued a regulation for urban labs and neighborhood agreements. Milan has implemented a model based on concession of city-owned buildings for social use.86 Barcelona has recently finalized a plan on citizen heritage that brings together the many different policies that allow social and civic organizations to take over the control of assets and services in the city. Madrid’s ordinance on public social cooperation is another telling example.87 Those cities, and many other European cities, are addressing this policy theme under the same normative framework and are experimenting with the use of legal tools, including public procurement, to promote civic entrepreneurship and social innovation to address pressing urban policy challenges including digital transition, urban poverty, energy efficiency, and inclusive urban development. In some of these cases, urban laws experimenting with innovative governance of urban commons, services, and infrastructure align with the NUA’s principles, and their goals are supported by EU urban programs specifically designed by the EC to support urban innovation, namely the UIA and URBACT. Initiatives such as the UIA configure a body of law of urban communities at the EU level,

A multi-stakeholder perspective in relation to the European Urban Agenda 61 envisioning the legal challenges and possible solutions emerging from practices produced in cities during the current phase of change and adaptation.

Turin, Italy The Co-City Turin project88 started with the approval of an adapted version of the Bologna Regulation for the urban commons, supported by the EU as a UIA project on public procurement innovation for urban renewal. The Co-City project initiated a discussion among legal scholars that raised crucial reflections with regards to the legal nature of the pacts of collaboration within Italian legal frameworks, but also EU law. The main distinction that emerged is between two approaches. The first one envisions the pacts of collaboration as a form of administrative action and therefore public administration’s power. According to this approach, opinions ranged over time from the qualification of the pact as an administrative agreement pursuant to Article 11 of Italian Administrative Procedure Act (approved through Law No. 241/1990)89 on administrative procedure.90 A different position expressed during the meeting was to construe the pact of collaboration as a form of incentive under Article 12 of the Italian Administrative Procedure Act.91 A second interpretative option reads this legal innovation pursuant to the principles regulating public-private partnerships or more generally the law on public contracts and therefore public procurement. An interesting stance under this approach would be that the pacts of collaboration for the urban commons should be reconceived as an implementation of a “social partnership” as a form of public-community partnership.92 Article 190 foresees two possible ways for implementing a social partnership, one where the city can issue a public procurement procedure dedicated to projects designed by citizens and projects initiated by city inhabitants. A second approach within this stance is that the legislation on social services and more recently the new “Code on the Third Sector,” which regulates the not-forprofit activities might be relevant as well.93 According to different positions which emerged during a debate on the Co-City project held at the National Association of Italian Cities, the pacts of collaboration should not be conceived as a form administrative action and therefore consensual exercise of authoritative activity.94 The public-private partnership or public contract legislation might be useful instead, but it should be reconciled with the true nature of this activity. It is an unprecedented form of institutional and public governance innovation, which is expressed through a non-authoritative activity of the city government. It sometimes might imply the need to deal with public procurement rules, but its legal nature should be further investigated. Its morphology is clear though: it consists of enabling the collective action and active citizenship of city inhabitants as a new way to govern urban assets, services, and infrastructure.95 The construction of non-authoritative (horizontal, collaborative, cooperative) relationships between the government and city inhabitants requires changes in the action of both public and social actors, as well as the private sector. The public administration must turn itself into a platform,96 acting

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as an actor that is willing to put in place the connection between different actors and resources. The civic actors – in Turin’s case, the “urban commoners” – are required to adopt a more political and entrepreneurial approach. This would imply that they are ready to manage a certain level of risk and invest time, thus behaving according to a model inspired by the idea of the “civic entrepreneur.”97 As a matter of fact, the first solution would not be consistent with the idea of a city administration’s activity as non-authoritative, as the regulation itself also declares that the collaboration between citizens and the public administration is realized through the adoption of administrative acts of non-authoritative nature. An option could be to adopt a double framework in which the sharing of governmental powers through public policy co-design precedes the formation of a public-public partnership98 pursuant to the administrative procedure law or pursuant to the public contracts/procurement legislation and in general the EU legislation on the forms of cooperation between public authorities. As a matter of fact, city inhabitants sharing the right to co-decide policy and perform some public administrative work places them in a position that is substantially equal to that of traditional governmental administrative units. This would be the only approach that would truly recognize local communities as sovereign social semipublic authorities (the so-called State-Community) co-governing the city with the State apparatus. The phenomena tackled by the Turin Co-City project, that of collective action for urban commons, is not only a prerogative of the city of Turin or other Italian cities, but it is happening in many cities in the EU and globally. One of the main contributions of the Co-City project could be precisely that of building a network of cities that are facing the same challenges through similar policy tools, thus promoting mutual exchange. This section highlights that, through an empirical and normative observation of urban public policies in cities, a dramatic increase in policy paths and tools to enable legal and administrative innovation for co-governance of urban resources and infrastructures, in the absence of standardized rules. The Turin Co-City project is a unique policy experiment for regulating urban regeneration through collaborative processes because it faces the challenges posed by this policy area from the public procurement standpoint. The path chosen by other cities deals with the issue by granting civic use or the exclusive concession of use of city-owned buildings, or turning city administration into a platform enabling collective action for the urban commons by aggregating civic and private resources in the city toward the goal of regenerating and co-managing urban public spaces and buildings.

Naples, Italy and the Civic eState transfer network of the EU The experience of Naples regarding urban civic uses is also of key relevance. Naples enabled autonomous civic actions to regenerate city-owned buildings and turn them into platforms for cultural and creative expression, self-organized and self-managed by NGOs and informal groups of citizens. As anticipated, many experiments in this direction are taking place through innovative urban laws promoted in Italy, as well as other European cities. In some

A multi-stakeholder perspective in relation to the European Urban Agenda 63 cases, the exemplary case studies of urban co-governance trigger a process of policy learning and mobility,99 supported by EU programs specifically designed for this, such as the URBACT program. The URBACT transfer network “Civic eState” is made up of Naples, with its urban civic uses policy; Barcelona, which is investing huge efforts in enforcement of the right to housing, autonomous local energy production, and commons-based governance of urban assets and infrastructures;100 Ghent, which promoted an overall plan to implement urban commons in the city, a “Commons Transition plan”; Amsterdam, which is devoting effort to implement a collaborative digital economy; Gdansk, which is willing to create a co-governance model for a city-owned building, a former college, based on a partnership among the city, NGOs, and city residents to co-create neighborhood services; Presov and Iasi, which need to improve the city residents’ awareness and the institutional capacity101 of the cities regarding co-governance.102 The goal of the network is to extract the legal design principles of urban co-governance from the best practice of Naples’ civic use, provide the adaptation necessary to transfer them into different urban contexts and different policy domains, develop a sustainability mechanism that sees an important role of patient finance and thus build an experimental civic heritage policy. These projects teach that horizontal relationships between city administration and inhabitants require change in the actions of actors involved.103 The switch toward a “platform state” and a form of civic entrepreneurship allows for the creation of innovative governance schemes that consist of “enabling the collective action and active citizenship of city inhabitants as a new way to govern, not just manage urban assets, services, infrastructure.”104 It is therefore important to understand the connections that exist among different urban actors and analyze the role that new institutional mechanisms have in bringing them together to foster innovation.

Reggio Emilia, Italy and the CSO as an innovation procurement broker The city of Reggio Emilia (Italy) put in place a policy strategy aimed at developing an inclusive, collaborative, creative city by relying on the enabling features of digital tools and infrastructures coupled with urban renewal processes, cultural heritage preservation, and improvement of urban services. This approach is based on the promotion of co-creation and, ultimately, social-digital innovation. The city has put in place a wide variety of urban experimentations both in the historical center and in the outskirts. Through the renovation of historical building complexes such as the “Chiostri di San Pietro” (Saint Peter Cloister), the local community has co-designed an open laboratory that will serve as a social innovation hub, a center for dialogue and creation, where technological culture and open access to digital tools will facilitate knowledge production, sharing, and innovation. The project was carried out within an urban policy framework composed by policies such as the Regulation for Citizenship Agreements105 and the Reggio Emilia Collaboratory,106 aimed at promoting civic collaboration and

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public-community partnerships for the co-governance of urban resources, services, and infrastructures. Similarly, the Coviolo Wireless Initiative,107 winner of the 2017 European Broadband Awards, has successfully developed wi-fi infrastructure in complex neighborhoods, extending Internet access to city inhabitants in underserved areas and providing social and economic development opportunities by turning the neighborhood community centers into hotspots and managers of the digital infrastructure. Those projects epitomize how a city’s policies work toward the development of a technologically just city. Investing in access, participation, co-management, and/or co-ownership of technological and digital urban infrastructure and data, Reggio Emilia seeks to affirm the key role that digital tools play as drivers of cooperation and co-creation of urban commons.108 Continuing in this direction, Reggio Emilia designed the ambitious plan of setting up a city-wide collaborative project to be managed by an Urban Science Office, that will act at the same time as a CSO, an innovation broker, and an innovation procurement broker. Its goal will be to involve quintuple helix actors – actors belonging to different categories (public local authorities and agencies, businesses and local entrepreneurs, NGOs and social actors, city residents and informal groups of social innovators, and knowledge actors such as schools and universities) pooling their resources and cooperating to carry out projects to improve the cities’ services and infrastructures – to generate new neighborhood-based digital and social innovation solutions enabling free and fair access to management and co-ownership of social, economic, data, and digital infrastructures.109 The proposed solution is centered on the evolution of the local communities into active protagonists of the social-digital transition process at the neighborhood level. The bottom-up drivers of this transition will be the Neighbourhood Social Centres (NSCs), social and public facilities managed by NGOs that would operate at the neighborhood scale, thus building social hubs for digital transition and innovation (SDI).110 The main expected result is the creation of an innovative network of SDIs that act as decentralized nodes able to facilitate through specialized knowledge, training processes, continuous learning, and constant supervision or valorization the transition to the co-creation, co-management, or co-ownership of tech and digital services. This threefold nature of the Reggio Emilia Urban Science Office is central as it implies investing in collaborative dialogue processes matching digital and social innovators with the scientific world and innovation industry. A proper framework of legal tools, as well as an adequate level of economic resources, will derive from the adoption of innovation procurement strategy according to the EU directives on public procurement.

Lessons learned and the way forward for urban co-governance As discussed previously, multilevel governance at the city level might result in the creation of multi-stakeholder partnerships to provide for a service or infrastructure development. While PPPs have by now become a common solution

A multi-stakeholder perspective in relation to the European Urban Agenda 65 for public sector risk aversion and for its lack of resources, it is clear that sustainable innovation and smart city infrastructures require new types of partnerships, overcoming the public-private binary usually adopted to create partnerships, to experiment with and prototype tech-based or nature-based solutions for planning climate adaptation in cities.111 Especially when it comes to the inclusion of urban citizens and civic associations, innovative procurement practices hold the potential to experiment with new regulatory and governance solutions for the co-design, collaborative management, and implementation of urban regeneration projects as well as service delivery.

Urban innovation project finance When speaking of innovation in public procurement and social innovation, it is important to address the rise of new financing instruments aimed at investing in projects with a social impact: “Social Finance (SF) defines the set of alternative lending and investment approaches for financing projects and ventures, requiring to generate both positive impacts on society, the environment, or sustainable development, along with financial returns.”112 SF instruments are key tools for the development of the social innovation sector in general and for urban co-governance projects in particular. Especially when it comes to addressing issues such as urban poverty, digital infrastructure, circular economy, renewable energy, and cultural heritage sectors, SF solutions might provide a partnership model that is able to have a real impact on local communities, bringing together local associations, citizens, and private and public actors.

The role of urban collaboratories to incubate urban innovation partnerships Finding the proper ways, methodologies, and rules to foster multi-actor cooperation such as public-private-community or public-private-people partnerships requires attention, competences, skills, time, and resources. Organization and process are essential. The literature on PPPs shows that the public sector lacks the skills, incentives, and resources to experiment and change its traditional system of service delivery through partnership with citizens and other civil society actors.113 Effective innovation requires risk-takers in public administrations who overcome barriers to change, curate new partnerships with different actors, develop new ideas for service delivery, and test innovative solutions coming from external actors. In many cases, especially at the city level, such public open innovation processes are supported by what we can generally call urban laboratories. “Collaboratories,” “Urban Innovation Labs,” or “Living Labs,” these environments generally act as intermediaries among public authorities, private actors, knowledge institutions, civic society actors, and citizens.114 Living Labs are for instance defined as forums for innovation, applied to the development of new products, systems, services, and processes, employing working methods to integrate people into the entire development process as users and co-creators, to explore, examine,

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Innovation brokers therefore play an important role not only because they produce knowledge and innovative solutions to local challenges. They often allow for multi-actors meeting and networking; they set up collaborative processes of design and implementation; they foster learning and skills development; and provide for the infrastructure necessary for the participation of civic society actors or citizens, through organization of meetings, assemblies, and workshops.116 Collaboratories might be specifically valuable for smaller and medium-sized cities, or neighborhoods in large cities and can complement ongoing city-wide or EUwide initiatives.117 Closing the gap among public administrations, service providers, and users, and facilitating cooperation and exchanges between these actors, innovation brokers are ultimately essential instruments for the development of urban innovation partnerships.

Concluding remarks This chapter advances the hypothesis that the right to the city approach endorsed by the NUA through its sustainable urban development vision can be locally implemented not just by including references to the right to the city in legislation,118 but also through urban co-governance. This entails the adoption of a multi-stakeholder approach valorizing the role of knowledge actors, private actors, NGOs, and urban citizens that the NUA foresees in some of its provisions. This approach can be implemented through analysis of the Urban Agenda for the EU. The Urban Agenda for the EU vision can be achieved by cities through urban law,119 urban regulations, and policies promoting governance of urban resources, services, infrastructures, and by different forms of publiccommunity partnerships. Urban law can be produced by cities relying upon public, administrative, and private law tools. As demonstrated by projects in Turin and Barcelona, among other European cities, the Urban Agenda for the EU and law produced by EU cities can inspire local implementation of the NUA and its commitments for equitable and sustainable cities.

Notes 1 UN-Habitat, Urbanization and Development: Emerging Issues. World Cities Report 2016 iii (2016). 2 Id. at 31. 3 Robert Muggah & Benjamin Barber, Why Cities Rule the World, IDEAS.TED.COM (May 31, 2016), https://ideas.ted.com/why-cities-rule-the-world/. 4 MCKINSEY GLOBAL INST., URBAN WORLD: THE GLOBAL CONSUMERS TO WATCH 4 (2016). 5 Those thirty-two cities are distributed in the following way: twelve in the China region (Beijing, Chengdu, Chongqing, Guangzhou, Hangzhou, Hong Kong, Nanjing, Shanghai, Shenyang, Shenzhen, Tianjin, and Wuhan); eleven in the United States (Atlanta, Georgia; Boston, Massachusetts; Chicago, Illinois; Dallas,

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6 7 8 9 10 11

12 13 14 15 16 17 18 19 20 21 22 23

Texas; Houston, Texas; Los Angeles, California; Miami, Florida; New York, New York; Phoenix, Arizona; San Francisco, California; and Washington, DC); two each in Northeast Asia (Osaka and Tokyo, both in Japan), Latin America (Mexico City, Mexico, and São Paulo, Brazil), and South Asia (Delhi and Mumbai, both in India); and one city each in Western Europe (London in the United Kingdom), the Eastern Europe and Central Asia region (Istanbul, Turkey), and Southeast Asia (Jakarta, Indonesia). MCKINSEY GLOBAL INST., URBAN WORLD: THE GLOBAL CONSUMER TO WATCH 14 (2016). G.A. Res 71/256*, annex, New Urban Agenda (Dec. 23, 2016) [hereinafter New Urban Agenda]. Sandra C. Valencia, fet al., Adapting the Sustainable Development Goals and the New Urban Agenda to the City Level: Initial Reflections from a Comparative Research Project, 11 INT’L J. URB. SUSTAINABLE DEV. 4, 4–23 (2019). New Urban Agenda, supra note 6, ¶ 11. See Goal 11: Make Cities Inclusive, Safe, Resilient and Sustainable, U.N. SUSTAINABLE DEV. GOALS, www.un.org/sustainabledevelopment/cities/ (last visited Oct. 15, 2017). New Urban Agenda, supra note 6, ¶ 11. In a similar way to what is suggested here, Amsterdam was able to create a virtuous policy ecosystem under the umbrella of the Amsterdam Smart City program, which resulted in a highly successful experiment of an inclusive Smart City. The City operated in the absence of a national normative framework on smart cities, although governmental actors were constantly involved. The creation of the network of public, private, and social actors necessary for a smart city was fueled by EU funds, but the strategy then proceeded without them. Rob Raven, et al., Urban Experimentation and Institutional Arrangements, 27 EUR. PLAN. STUD. 258 (2017). Nestor M. Davidson, What Is Urban Law Today: An Introductory Essay in Honor of the Fortieth Anniversary of the Fordham Urban Law Journal, 40 FORDHAM URB. L.J. 1579 (2013). Stephen P. Osborne, The New Public Governance?, 8 PUB. MGMT. REV. 377, 377 (2006). Christopher Hood, A Public Management for All Seasons?, 69 PUB. ADMIN. 3 (1991); DAVID OSBORNE & TED GRAEBER, REINVENTING GOVERNMENT: HOW THE ENTREPRENEURIAL SPIRIT IS TRANSFORMING THE PUBLIC SECTOR (1992). Stephen P. Osborne, Delivering Public Services: Time for a New Theory?, 12 PUB. MGMT. REV. 1 (2010). Denita Cepiku, et al., Governance e coordinamento strategico delle reti di aziende sanitarie, 15 MECOSAN 17 (2005). Id.; RENATE MAYNTZ, NEW CHALLENGES TO GOVERNANCE THEORY (1998); Fritz Scharpf, Games Real Actors Could Play: The Problem of Mutual Predictability, 2 RATIONALITY & SOC’Y 471 (1990). BETH SIMONE NOVECK, WIKI GOVERNMENT: HOW TECHNOLOGY CAN MAKE GOVERNMENT BETTER, DEMOCRACY STRONGER AND CITIZENS MORE POWERFUL (2009). Lisa Bingham, The Next Generation of Administrative Law: Building the Legal Infrastructure for Collaborative Governance, 2010 WIS. L. REV. 297 (2010). Chris Ansell & Alison Gash, Collaborative Governance in Theory and Practice, J. PUB. ADMIN. RES. & THEORY 543 (2007). Sheila R. Foster and Christian Iaione, The City as a Commons, 34 YALE L. & POL’Y REV. 281 (2016) Christian Iaione, The Co-City: Sharing, Collaborating, Cooperating, and Commoning in the City, 75 AM. J. ECON. & SOC. 415 (2016). JAN KOOIMAN, GOVERNING AS GOVERNANCE 96–112 (2003); Ansell & Gash, supra note 20; Lisa Bingham, Collaborative Governance: Emerging Practices and the

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Christian Iaione and Elena De Nictolis Incomplete Legal Framework for Public and Stakeholder Voice, 2009 J. DISP. RESOL. 269, 269–325 (2009). New Urban Agenda, supra note 6, ¶ 153. Federico Caprotti, et al., The New Urban Agenda: Key Opportunities and Challenges for Policy and Practice, 10 URB. RES. & PRAC. 367, 367–78 (2017). New Urban Agenda, supra note 6, ¶¶ 38, 156. New Urban Agenda, supra note 6, ¶ 149. HUBERT HEINELT, POLICY DEP’T FOR CITIZENS’ RIGHTS AND CONSTITUTIONAL AFFAIRS, EUR. PARLIAMENT, THE ROLE OF CITIES IN THE INSTITUTIONAL FRAMEWORK OF THE EUROPEAN UNION (2017). THE FUTURE OF CITIES – OPPORTUNITIES, CHALLENGES AND THE WAY FORWARD, EUR. COMM’N JOINT RESEARCH CENTRE (2019). Urban Agenda for the EU: Pact of Amsterdam, at ¶ 52, EUR. COMM’N (2016), https://ec.europa.eu/regional_policy/sources/policy/themes/urban-devel opment/agenda/pact-of-amsterdam.pdf [hereinafter URBAN AGENDA FOR THE EU]. URBAN AGENDA FOR THE EU, supra note 30, at 4. New Urban Agenda, supra note 6, ¶ 153. URBAN AGENDA FOR THE EU, supra note 30, ¶ 17. URBAN AGENDA FOR THE EU, supra note 30, ¶ 18. New Urban Agenda, supra note 6, ¶ 28. Charter of Fundamental Rights of the European Union, art. 37, 2007 O.J. (C 303) 1. New Urban Agenda, supra note 6, ¶¶ 13a, 65. CODE OF GOOD PRACTICE FOR DESIGNING AND IMPLEMENTING AIR QUALITY PLANS, PARTNERSHIP ON AIR QUALITY – URBAN AGENDA FOR THE EU (2018). FINANCING AIR QUALITY PLANS: GUIDANCE FOR CITIES AND LOCAL AUTHORITIES, PARTNERSHIP ON AIR QUALITY – URBAN AGENDA FOR THE EU (2019). New Urban Agenda, supra note 6, ¶ 105. New Urban Agenda, supra note 6, ¶ 71. Urban Agenda for the EU, Circular Economy: Action Plan, EUR. COMM’N (2018), https://ec.europa.eu/futurium/en/system/files/ged/ua_ce_action_ plan_30.11.2018_final.pdf. The public-private people partnership was initially developed in urban planning studies to denote a process of collaboration among different public-private social actors in urban planning. This kind of partnership was created to avoid complications in later stages of the process by including citizens from the beginning and to respond to the accountability and transparency challenges of public-private partnerships. LIISA PERJIO, ET AL., BALTIC URBAN LAB, PUBLIC-PRIVATE-PEOPLE PARTNERSHIPS IN URBAN PLANNING (2016). New Urban Agenda, supra note 6, ¶ 71. Urban Agenda for the EU, Sustainable Use of Land and Nature-Based Solutions Partnership: Action Plan 31, EUR. COMM’N (2018), https://ec.europa.eu/ futurium/en/system/files/ged/sul-nbs_finalactionplan_2018.pdf. Urban Agenda for the EU, Partnership for Urban Mobility: Final Action Plan, EUR. COMM’N (2018), https://ec.europa.eu/futurium/en/system/files/ged/ 2018-11-14_pum_final_action_plan.pdf. New Urban Agenda, supra note 6, ¶¶ 116, 121. Partnership on Public Procurement, EUR. COMM’N, https://ec.europa.eu/ futurium/en/node/2230 (last visited Oct. 20, 2019). New Urban Agenda, supra note 6, ¶¶ 116, 121. Outcomes of the 2nd Partnership Meeting of the Culture/Cultural Heritage Partnership, EUR. COMM’N (Apr. 17, 2019), https://ec.europa.eu/futurium/en/ culturecultural-heritage/outcomes-2nd-partnership-meeting-cultureculturalheritage-partnership.

A multi-stakeholder perspective in relation to the European Urban Agenda 69 51 New Urban Agenda, supra note 6, ¶¶ 37, 45, 60, 97, 124, 125. 52 Urban Agenda for the EU, Jobs and Skills in the Local Economy: Action Plan, EUR. COMM’N (2018), https://ec.europa.eu/futurium/en/system/files/ged/ ap20final20draft_jobs_and_skills_26oct2018.pdf. 53 New Urban Agenda, supra note 6, ¶ 155. 54 Urban Agenda for the EU, Security in Public Spaces Partnership: Orientation Paper, EUR. COMM’N (2019), https://ec.europa.eu/futurium/en/security-pub lic-spaces/security-public-spaces-partnership-presents-orientation-paper. 55 Juli Ponce, Affordable Housing as Urban Infrastructure: A Comparative Study from a European Perspective, 43 URB. LAW. 223, 246 (2010). 56 LIEVE FRANSEN, ET AL., EUR. ECON., BOOSTING INVESTMENT IN SOCIAL INFRASTRUCTURE IN EUROPE (2018). 57 ALICE PITTINI, ET AL., THE STATE OF HOUSING IN THE EU 2017 (2017). 58 PITTINI, ET AL., supra note 57 at 15–21. 59 Kathleen Scanlon, et al., Social Housing in Europe, EUR. POL’Y ANALYSIS, June 2015, at 2. 60 CITIES FOR ADEQUATE HOUSING, Municipalist Declaration of Local Governments for the Right to Housing and the Right to the City. New York, 16th July 2018, https://citiesforhousing.org/#section-0 (last visited Oct. 20, 2019). 61 U.N. Special Rapporteur, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-discrimination in this Context, U.N. Doc. A/HRC/37/53 (2018). 62 URBAN AGENDA FOR THE EU, THE HOUSING PARTNERSHIP ACTION PLAN (2018), https://ec.europa.eu/futurium/en/system/files/ged/final_action_plan_ euua_housing_partnership_december_2018_1.pdf. 63 New Urban Agenda, supra note 6, ¶¶ 14, 107. 64 E-Co-Housing, URB. INNOVATIVE ACTIONS PROJECT, https://uia-initiative.eu/en/ uia-cities/budapest (last visited Oct. 20, 2019). 65 Yes We Rent, URB. INNOVATIVE ACTIONS PROJECT, www.uia-initiative.eu/en/uiacities/mataro (last visited Oct. 20, 2019). 66 CALICO, URB. INNOVATIVE ACTIONS PROJECT, www.uia-initiative.eu/fr/uiacities/brussels-capital-region (last visited Nov. 4, 2019). 67 Home Silk Road, Lyon, URB. INNOVATIVE ACTIONS PROJECT, https://uia-initia tive.eu/en/uia-cities/lyon-metropole (last visited Oct. 24, 2019). 68 Curing the limbo, INNOVATIVE ACTIONS PROJECT, www.uia-initiative.eu/en/uiacities/athens (last visited Oct. 24, 2019). 69 Ajuntament de Barcelona, PLA PER DRET A L’HABITADGE DE BARCELONA 2016– 2025 (2016), https://habitatge.barcelona/sites/default/files/documents/ pla_pel_dret_a_lhabitatge_resum_executiu.pdf. 70 Consorci de l’Habitage, Borsa d’Habitatge de Lloguer de Barcelona, AJUNTAMENT DE BARCELONA, www.bcn.cat/consorcihabitatge/ca/borsa-habitatge.html (last visited Oct. 20, 2019) (modifying the Regulatory Norms of the Rental Housing Exchange, approved by the Junta General del Consorci de l’Habitatge de Barcelona, on July 1st, 2014). 71 See El cohabitatge, AJUNTAMENT DE BARCELONA, http://habitatge.barcelona/ca/ acces-a-habitatge/cohabitatge (last visited Nov. 4, 2019) (explaining information on the co-housing policy and the public contest). 72 Fabiana Bettini, Inclusivity in Cohousing: A Comparative Legal Analysis of Sustainability and Enforceability, IASC 2017 (2017), www.iasc2017.org/wp-con tent/uploads/2017/07/9C_Fabiana-Bettini.pdf. 73 Cf. Loi n°2014-366 du 24 mars 2014 pour l’accès au logement et un urbanisme rénové [Law 2014-366 of March 24, 2014 for the access to the housing and a renovated urbanism], JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [Official Gazette of France], Mar. 26, 2014 at 5809.

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74 Fabiana Bettini, The Rise of Community Land Trusts in Europe, LABGOV.CITY (Sept. 6, 2017), https://labgov.city/theurbanmedialab/the-rise-of-communityland-trust-in-europe/#_ftn5. 75 Bettini, supra note 73. 76 Housing Eur., Organisme de Foncier Solidaire de la Métropole Lilloise (June 7, 2019), www.housingeurope.eu/resource-1308/organisme-de-fonciersolidaire-de-la-metropole-lilloise. 77 Isabelle Rey-Lefebvre, Le foncier solidaire, un dispositif pour faire reculer la spéculation, Le Monde (Nov. 16, 2018), www.lemonde.fr/societe/article/ 2018/11/16/le-foncier-solidaire-un-dispositif-pour-faire-reculer-la-speculation_ 5384336_3224.html. 78 Patricia Marana, et al., A Framework for Public-Private-People Partnerships in the City Resilience-building Process, SAFETY SCI., Dec. 2018, at 39; Carlos Oliveira Cruz & Joaquim Miranda Sarmento, Public-Private Partnerships and Smart Cities, 19 NETWORK INDUSTRIES Q. 3 (2017). 79 Urban Agenda for the EU, Partnership on Innovative and Responsible Public Procurement: Final Action Plan, EUR. COMM’N (2018), https://ec.europa.eu/ futurium/en/system/files/ged/final_action_plan_public_procurement. 80 Urban Agenda for the EU, supra note 78 at 21. 81 Urban Agenda for the EU, supra note 78 at 22. 82 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC Text with EEA relevance, at point 47, https://eur-lex.europa.eu/legal-con tent/EN/TXT/?uri=celex%3A32014L0024 (last visited Oct. 20, 2019). 83 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Making Public Procurement Work in and for Europe, at 8, COM (2017) 572 final (Oct. 3, 2017). 84 CSOs are professionals, researchers, and civil servants working within municipal administrations with a cross-cutting approach on the interface between policies and city science. See City Science Initiative, EUR. COMM’N JOINT RES. CTR., https://ec.europa.eu/jrc/communities/en/community/city-science-initiative (last visited Oct. 20, 2019). 85 Foster & Iaione, supra note 21. 86 The deliberation was approved in 2012. Milan assigned buildings to NGOs through a public call followed by the presentation of proposals by city inhabitants. The call evolved and currently stresses the role of the economic plan (which must highlight the projects’ sustainability as a key factor to be taken into consideration for the evaluation). See Aree Tematiche, COMUNE DI MILANO, www. comune.milano.it/aree-tematiche/spazi-per-attivita-ed-eventi/spazi-assegnati (last visited Oct. 20, 2019). 87 See the PLA ESTRATÈGIC DEL PATRIMONI CIUTADÀ 2019–2023, BARCELONA, 2019 and the ORDENANZA DE COOPERACIÓN PÚBLICO – SOCIAL DEL AYUNTAMIENTO DE MADRID, MADRID (2018). 88 Co-City – The Collaborative Management of Urban Commons to Counteract Poverty and Socio-spatial Polarization, URB. INNOVATIVE ACTIONS PROJECT, www.uiainitiative.eu/en/uia-cities/turin (last visited Oct. 20, 2019). 89 For the text of Law No. 241/1990 in Italian, see Nuove norme in materia di procedimento amministrativo e di diritto di accesso ai documenti amministrativi, NORMATTIVA, https://www.normattiva.it/uri-res/N2Ls?urn: nir:stato:legge:1990-08-07;241!vig. For the bibliography, see, Vera Parisio, The Italian Administrative Procedure Act and Public Authorities’ Silence, 36 HAMLINE L. REV. 1 (2013). For an analysis of the administrative procedure act, see Aldo Sandulli, The Italian Administrative Procedure Act: Back to the Future,

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ITALIAN J. PUB. L. (2010); see also Raffaele Bifulco, The Constitutional Importance of Law 241/1990, 2 ITALIAN J. PUB. L. 359 (2010). Giorgio Calderoni, Beni comuni e patti di collaborazione, I patti di collaborazione: (doppia) cornice giuridica, AEDON, 2016. See also Fabio Giglioni, I regolamenti comunali per la gestione dei beni comuni urbani come laboratorio per un nuovo diritto delle città, MUNUS 271 (2016). Giglioni clarifies in this essay that the configuration of the pacts as public agreements pursuant to Article 11 of law no. 241 of 1990 is not convincing unless this normative framework is conceived only as a reference principle. His position was expressed during the meeting and is also articulated in Giglioni, supra note 87, at 297. The social partnership in the Italian legal framework is disciplined by Article 190 of the Italian Code of Public Contracts. See Italian Public Contract Code, AUTORITÀ NAZIONALE ANTICORRUZIONE at 217, www.anticorruzione.it/portal/rest/ jcr/repository/collaboration/Digital%20Assets/anacdocs/MenuServizio/ English%20section/ITALIAN_PUBLIC_CONTRACT_CODE%2015%20 giugno%202018_sito%20(2).pdf. Italian administrative law scholar Paolo Michiara sustained the position that it would be possible to frame the pacts using the several legal provisions disciplining the not-for-profit sector existing in the normative framework. Paolo Michiara, I patti di collaborazione e il regolamento per la cura e la rigenerazione dei beni comuni urbani. L'esperienza del Comune di Bologna, AEDON, May–Aug. 2016, at 14. Christian Iaione, The Co-City Journal n. 2, URB. INNOVATIVE ACTIONS PROJECT, www.uia-initiative.eu/en/uia-cities/turin (last visited Oct. 25, 2019). Christian Iaione, The Tragedy of Urban Roads: Saving Cities from Choking, Calling on Citizens to Combat Climate Change, 37 FORDHAM URB. L.J. 889 (2010); CHRISTIAN IAIONE, CITY AS A COMMONS (2012); Foster & Iaione, supra note 21; Christian Iaione & Elena De Nictolis, Urban Pooling, 44 FORDHAM URB. L.J. 665 (2017); Sheila Foster & Christian Iaione, Ostrom in the city. Design Principles and Practices for the Urban Commons, in ROUTLEDGE HANDBOOK OF THE STUDY OF THE COMMONS (2019). As opposed to government techniques, governance strategies are characterized by equality, horizontality, and openness towards territorial communities, civil society, and the private sector, and are based on collaborations among various actors (institutional, social, knowledge, and entrepreneurial) to create partnerships dedicated to the shared realization of aims of general interest. The strategy to which the partnership instrument responds is precisely that of abandoning the logic of the opposition between public and private interest, and between state interests and local interests, to create a network of alliances around public choice; in a word, to apply the principles and governance techniques on the issue of the urban commons addressing urban inequality. MARIA ROSARIA FERRARESE, LA GOVERNANCE TRA POLITICA E DIRITTO 49 (2010). See also Christian Iaoine, La localizzazione delle infrastrutture localmente indesiderate: da soluzioni di government a soluzioni di governance, PER GOVERNARE INSIEME: IL FEDERALISMO COME METODO 203 (2011); Christian Iaione, La collaborazione civica per l’amministrazione, la governance e l’economia dei beni comuni, L’ETÀ DELLA CONDIVISIONE 78 (2015) [hereinafter La collaborazione]. Francesca Spigarolo, The State as a Platform for Civic Imagination: Politics and Institutions in the CO-Century, LABGOV.CITY (Jan. 16, 2017), http://labgov. city/commonspress/the-state-as-a-platform-for-civic-imagination-politics-andinstitutions-in-the-co-century/. In a series of scholarly articles, one of the authors of this chapter argued for the need to create public-civic or public-community partnerships as a policy

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Christian Iaione and Elena De Nictolis and legal tool to ground cooperation between public administrators and social innovators through co-design processes to realize projects of general interest. See Christian Iaione, Città e beni comuni, in L’ITALIA DEI BENI COMUNI 127 (2012); Christian Iaione, La città come un bene comune, AEDON 2013, at 31; Christian Iaione, Governing the Urban Commons, 7 ITALIAN J. PUB. L. 170, 190 (2015); La collaborazione, supra note 92. See also Maria Vit Ferroni, Le forme di collaborazione per la rigenerazione di beni e spazi urbani, NOMOS 2017, at 9. Claire Dunlop, Policy Learning and Policy Failure: Definitions, Dimensions and Intersections, 45 POL’Y & POL. 1, 3–18 (2017). Ugo Mattei & Alessandra Quarta, Right to the City or Urban Commoning: Thoughts on the Generative Transformation of Property Law, 1 ITALIAN L.J. 303, 326 (2015). Xun Wu, et al., Policy Capacity: A Conceptual Framework for Understanding Policy Competences and Capabilities, 34 POL’Y & SOC’Y 165 (2015), Christian Iaione, Pooling Urban Commons: The Civic eState, URBACT (July 16 2019), https://urbact.eu/urban-commons-civic-estate. Iaione, supra note 93. Christian Iaione, The Platform State, in CO-CITIES OPEN BOOK (2018). Christian Iaione, The Platform State, in Co-Cities Open Book, http://commoning.city/ the-co-cities-open-book/ (last visited Oct. 20, 2019). Francesca Spigarolo, The CO-Cities Series: #2 Reggio Emilia (May 25, 2017), https://labgov.city/theurbanmedialab/the-co-cities-series-2-reggio-emilia/. The Reggio Emilia Collaboratory is a process promoted by the municipality of Reggio Emilia in collaboration with the University of Modena and Reggio Emilia and with the scientific, strategic, and organizational support of LabGov. city and the social enterprise Kilowatt. Collaboratorio Reggio, COLLABORATORE REGGIO, https://co-reggioemilia.commoning.city/ (last visited Oct. 20, 2019). Good Broadband Practice: Coviolo Wireless, Italy, EUR. COMM’N (Mar. 5, 2018), https://ec.europa.eu/digital-single-market/en/news/good-broadband-prac tice-coviolo-wireless-italy. See also Progetto Coviolo Wireless, COMUNE DI REGGIO EMILIA (Apr. 8, 2016), www.comune.re.it/retecivica/urp/retecivi.nsf/ PESDocumentID/D8CF7E0E9FFE9A32C12580060030E13D?opendocument. Foster and Iaione, supra note 91; see also Christian Iaione, et al., LAW AND ETHICS OF HUMAN RIGHTS (forthcoming 2019). Elias Carayannis & David Campbell, Triple Helix, Quadruple Helix and Quintuple Helix and How do Knowledge, Innovation and the Environment Relate to Each Other? A Proposed Framework for a Trans-disciplinary Analysis of Sustainable Development and Social Ecology, INTERNATIONAL JOURNAL OF SOCIAL ECOLOGY AND SUSTAINABLE DEVELOPMENT 1(1), 41–69 (2010); Thorsten Barth, The Idea of a Green new Deal in a Quintuple Helix Model of Knowledge, Know-how and Innovation, INTERNATIONAL JOURNAL OF SOCIAL ECOLOGY AND SUSTAINABLE DEVELOPMENT 1(2), 1–14 (2011); Julia Lane, Big Data for Public Policy: The Quadruple Helix, 35 JOURNAL OF POLICY ANALYSIS AND MANAGEMENT 3, 708–15 (2016). The neighborhood social centers are distributed across all neighborhoods in Reggio Emilia and are run by local NGOs and organize social and cultural activities and offer urban welfare services (wi-fi connection; care and management of green areas; community doorman). See Laboratorio urbano – Collaboratorio di quartiere, COMUNE DI REGGIO EMILIA (Sept 25, 2019), www.comune.re.it/ retecivica/urp/retecivi.nsf/PESDocumentID/3DCDC814B444A3BAC1258 488002BB62E?opendocument&FROM=lprcss (last visited Oct. 25, 2019). Oliveira Cruz & Joaquim Miranda Sarmento, Public-Private Partnerships and Smart Cities, 19 NETWORK INDUSTRIES Q. 3 (2017): “Regulatory Challenges for

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Smart Cities”; Ben P. Harman, et al., Urban Partnerships and Climate Adaptation: Challenges and Opportunities, SUSTAINABILITY GOVERNANCE AND TRANSFORMATION 12, 74–77 (2015). Francesco Rizzi, et al., The Structuring of Social Finance: Emerging Approaches for Supporting Environmentally and Socially Impactful Projects, 170 J. CLEANER PRODUCTION 805, 805 (2018). Shafiul Azam Ahmed & Syed Mansoor Ali, People as Partners: Facilitating People’s Participation in Public-Private Partnerships for Solid Waste Management, 30 HABITAT INT’L 781, 781–96 (2006). Mila Gascó, Living Labs: Implementing Open Innovation in the Public Sector, 34 GOV’T INFO. Q. 90, 90–98 (2017). Harriet Bulkeley et al., Urban Living Labs: Governing Urban Sustainability Transitions, 22 CURRENT OPINION ENVTL. SUSTAINABILITY 13, 13–17 (2016). Ahmed & Ali, supra note 108; Gascó, supra note 109. See Urban Agenda for the EU, supra note 30, ¶ 29. New Urban Agenda, supra note 6, ¶ 11. Davidson, supra note 12.

5

The New Urban Agenda and local citizen participation The Spanish example Francisco Velasco and Carmen Navarro

Introduction1 The New Urban Agenda (NUA) calls for citizen participation both as a form of action and as an aim for local governments. It repeatedly refers to citizen participation as an approach to decision-making when seeking to achieve the relevant goals. Additionally, the NUA defines one of the main purposes of citizen participation: “[T]o broaden inclusive platforms . . . that allow meaningful participation in decision-making, planning and follow-up processes for all, as well as enhanced civil engagement and co-provision and co-production.”2 Accordingly, within Sherry Arnstein’s ladder of citizen participation,3 the NUA chooses high degrees of citizen power (as opposed to citizen tokenism and non-participation). Arnstein’s ladder depicts eight rungs of citizen participation, ranging between mere information and consultation up to increasing degrees of power with a real impact on political decision-making. The Spanish national government has embraced the NUA. In February 2019, the Cabinet approved the Spanish Urban Agenda, a non-binding act adapted to the 2030 Agenda for Sustainable Development, the NUA, and the European Urban Agenda goals and specific proposals.4 It was the result of a broad participatory process initiated by the central government that included actors and experts in the field. Following the international strategies, the Spanish Urban Agenda also requires, as a general objective, to ensure citizen participation (Objective 10.2). To that end, it suggests a series of specific lines of action: ensuring that all citizens are granted a participation procedure prior to formal decision-making; effectively implementing citizen involvement in urban development; fostering participatory budgeting, transparency, open data, and permanent offices providing city information. Local governments are not legally bound by these objectives; in fact, they have a wide scope for political action. These aims rather guide and drive the central government’s action, and they can crystallize in economic aid or subsidies for local citizen participation initiatives, or potential draft legislation at a national level encouraging or requiring local governments to implement certain participation mechanisms. Citizen and public participation mechanisms are far from new forms of decisionmaking. Indeed, they have been a long-standing approach to decision-making in

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most democracies, including Spain. Initiatives for citizen involvement seek to engage the population in policymaking, and they are best exemplified at the local government level. In fact, local governments do not only make decisions directly affecting citizens’ well-being, but participation mechanisms themselves amount to distinct scenarios in terms of proximity, dimension, or awareness of citizens’ problems that promote and enable public participation. Some political theory scholars emphasize the need for public participation based on four core claims: 1) public participation provides citizens with an increased knowledge about the issues, allowing them to shape their opinions; 2) it allows citizens to better communicate their preferences to policymakers; 3) it enhances transparency in decision-making processes, thereby facilitating accountability; and 4) it provides responses to the growing difficulties faced by governments when tackling public policy issues.5 Although citizen participation is not a new phenomenon, the spotlight thereon is born out of the conviction that it must be more widely spread and strengthened as a good governance mechanism, since the performance and results of citizen participation are somewhat unsteady or inconsistent. Whereas there is a high level of citizen involvement in public affairs, significant public influence on policymaking, and a considerable social capital in certain countries, other countries’ authorities do not show a true commitment to public participation and/or citizens are yet to develop participatory attitudes. In Spain, for instance, in spite of multiple statutory and regulatory provisions that provide for and enable citizen participation, public bodies and participation processes only engage a small percentage of the population6 due to low social capital indices.7 Furthermore, according to several studies, the proposals arising from participation processes have a somewhat narrow scope, and they are selectively implemented by local authorities with little accountability by local governments.8 Therefore, there is no need for new statutes or regulations governing and ensuring citizen participation to meet the objectives laid down by the NUA, but rather public policy strategies fostering a participatory political culture. Legislation in place at the national, regional, and local level already allows for citizen participation and thoroughly regulates it. If the goals set by the NUA are still to be achieved, it is due to the lack of participatory habits within the population, not because of the applicable legal provisions. In addition to examining the formal structures provided by public authorities to engage citizens in decision-making processes, when assessing citizen participation, we need to ask several other questions: who participates, how do they perform, and how does participation work? To what extent do participation processes impact local decisions? What is the role of information and communications technology? Do public participation processes ensure inclusiveness of all interests? This chapter tackles these issues. It first provides a general overview of the statutory and regulatory provisions on local participation in Spain. It then examines the citizen participation mechanisms expressly enshrined in legislation, and finally, the chapter lays out the main lessons and challenges currently faced by the various forms of public participation.

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Citizen participation in Spanish law The re-establishment of democracy by means of the 1978 Spanish Constitution [Constitució Espanyola (CE)] created a legal context that favors citizen participation. Under Article 9(2) CE, public authorities and thus also local governments should “facilitate the participation of all citizens in political, economic, cultural and social life.” Additionally, Article 23(1) CE provides, as a fundamental right (i.e., enforceable before a court of law, including the Spanish Constitutional Court), that citizens are entitled to “participate in public affairs, directly or through representatives.” Finally, subparagraph a of Article 105(1) CE sets out that legislation must govern the “hearing of citizens” in rulemaking processes that may affect them.9 In compliance with the aforesaid constitutional provisions, the Spanish Local Government Act (LBRL) lays down a set of guarantees and procedures ensuring public participation at a local level.10 Since the initial approval of the law in 1985, various posterior amendments have increased the possibilities of citizen participation. In 2003, there was a partial amendment to the LBRL.11 The LBRL currently displays three sets of legal provisions regarding citizen participation. First, Article 29 of the LBRL refers to the so-called open council or town meeting (“concejo abierto”), a form of local government for small municipalities (usually not exceeding 100 people) where citizens gather in an assembly to rule the town. Second, Article 18(1)(b) expressly grants the enforceable right “to participate” to all residents. Third, Articles 69 through 72 provide for several mandates addressed to local governments with the aim of promoting citizen participation. Aside from these LBRL guarantees and procedures operating as minimum participatory thresholds guaranteed in all Spanish municipalities, certain autonomous regions have further advanced the constitutional participation-friendly provisions. Specifically, this is the case for the Basque Country12 and Andalusia.13 It is particularly worth noting regional legislation on urban planning and urban development.14 National and regional provisions have created a legal framework favoring citizen participation. However, these legal provisions often fail to implement specific procedures or mechanisms to make such public participation effective. The specific and operational provisions that render participation effective stem from local governments by means of their local regulations or bylaws. In sum, although national and regional legislation does guarantee and provide for citizen participation, only specific mechanisms and procedures implemented by each municipal or city council actually enable such participation. It is also worth noting a major difference between municipalities that tend to favor citizen participation (they simply allow for it, yet they do not facilitate it or purposefully promote it) and others that facilitate it and promote it with determination. Several studies have examined these differing approaches to local participation, and they have concluded that the existing differences revolve around four main factors.15 First, reasons related to the population’s characteristics and political attitudes: the greater the density of the municipality’s social fabric, the greater

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the demand for, and ultimately the achievement of, public participation goals. Second, factors concerning political competition and parties’ political orientation in each town: left-wing parties have typically supported citizen involvement, but this connection between local government ideology and participation is currently not as clear as it used to be. Third, aspects regarding the effectiveness of public policies: public participation is encouraged to ensure an unhindered implementation of any decisions arising from these procedures. And fourth, reasons tied to the availability of resources in the various municipalities: the more human and financial resources are devoted to participation policies, the greater the diversity and scope thereof. This factor becomes particularly prominent during economic downturns, such as that undergone by Spain between 2007 and 2013. Moreover, the presence of the new political party Podemos, meaning we can, in municipal councils after the 2015 local elections has reinvigorated participation in those municipalities ruled by them, including major Spanish cities like Madrid, Barcelona, Valencia, Santiago, and Zaragoza. Podemos represents the institutionalization of the social movement 15M-Indignados, a successful mobilization of people whose protests gained worldwide attention when they massively camped in main squares in Spain in May 2011 during the Great Recession. This grassroots movement addressed its indignation to traditional political parties for adopting the austerity policies that contributed to the huge increase in the rate of loss of jobs and homes. They blamed these parties for not representing citizens’ interests; the motto of their mobilization was “democracia real ya” (real democracy now).16 This explains why this political party and the groups around them emphasize the importance of open and inclusive decision-making mechanisms.

Citizen participation mechanisms From a legal perspective, national, regional, and local legislation provide three main forms of citizen participation: organic or institutional, top-down, and bottom-up.

Organic participation Organic participation entails integrating citizens, whether on their own behalf or representing associations or organized groups, into local bodies. Organic participation can take different forms, both in terms of the power vested in these bodies and regarding the way in which citizens or groups become a part thereof. These citizen participation bodies are often designated as advisory boards or advisory councils (“consejos consultivos”). They can be either sectoral (engaging public and private actors in connection with a sector or sector-specific policies: the elderly, culture, sports or education, among others) or territorial (the actors engaged and the interests at stake revolve around a given district or neighborhood). These advisory boards are the oldest and most commonly used participation mechanisms in local governments.

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Certain formal requirements apply to advisory boards, often governed by the so-called citizen participation regulations or bylaws passed by each municipality.17 Advisory boards are intended to be permanent; they are not meant to simply settle or discuss an isolated issue. Individual citizens or, more commonly, associations usually make up these boards or councils. Despite their little media visibility (they are somewhat overshadowed by the new forms of online citizen participation or participatory budgeting), they are the main form of dialogue between governments and organized groups. Some of the municipal councils that took office in 2015 are drawing up plans to reinvigorate and activate advisory boards. Madrid, for instance, is turning them into more open bodies. Regarding large municipalities, Article 128 LBRL requires them to establish districts. This provision affects sixty-four cities in Spain. In other words, the existence of districts is not at each municipality’s discretion based on the home rule principle, but rather it is required by national legislation. Under the LBRL, districts have a twofold purpose: devolution of local management powers and citizen participation.18 Despite the legal obligation to establish districts and to provide them with a participatory role, their actual operation depends on each municipality’s district regulations and citizen participation regulations or bylaws. Generally, each district has a district board. District boards are made up of local citizens appointed by the various political parties represented in the municipal council. Therefore, the so-called council members-neighbors that make up district boards are not elected officials; they are citizens appointed by political parties, obviously based on their political orientation. This partisanship ultimately deprives council members-neighbors of autonomy and initiative, since they would most likely pay more attention to party instructions than to each specific district’s needs. Every municipality is entitled to provide for directly elected council membersneighbors for their relevant district boards.19 However, this possibility is very rarely implemented,20 since political parties trying to win local elections would rather not take the risk of facing opposition at the district level. In addition to district boards, districts often have additional more open bodies, lacking capacity for direct action, that qualify as some sort of advisory boards. This is the case for the municipality of Madrid, where districts also include the so-called local fora: open assemblies where the resolutions adopted by citizens have no direct effect, yet qualify as “guidelines” for decision-making by council members or the district board.21

Top-down participation Top-down or functional participation occurs when citizens, whether individually or collectively, are induced or called on by local governments to express their opinions, suggestions, or objections regarding a given local policy initiative. It is worth differentiating between public involvement in rulemaking and other specific forms of citizen participation regarding other local policy initiatives. The rulemaking procedure at a local level, such as drafting municipal bylaws, has been typically subject to national statutory provisions. Currently, Article 49

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of the LBRL, abiding by long-standing regulatory practice, provides that following the initial approval of a draft regulation by the municipal council in full or municipal assembly, there is a public consultation stage to submit comments and suggestions. After this citizen participation stage, the municipal council should either accept or reject the comments submitted. Non-compliance with these procedural rules may entail the judicial annulment of the municipal bylaw.22 Citizens barely submit any comments during the said public consultation. This might be due to a lack of participatory culture, to the technical complexity of local regulations, or it may also be because the political parties represented in municipal councils are already responsive to citizens’ concerns and objections. In addition to this procedural participation mechanism, which takes place following the approval of draft regulations by the municipal council, Article 133(1) of the National Administrative Procedure Act of Public Administration (Ley del Procedimiento Administrativo Común de las Administraciones Públicas, or LPAC) also requires a prior public consultation through the relevant municipality’s website before the first draft regulation.23 This legal requirement has been recently enacted, but its implementation shows that very few citizens are motivated to submit comments or suggestions before the relevant municipality has specified in writing its regulatory objectives. There are additional citizen participation mechanisms during the local rulemaking procedure aside from this public consultation stage. Article 71 of the LBRL provides for “neighbor consultations” (“consulta vecinal”), such as some sort of local referendum where qualified voters are asked about a specific initiative. Although implementing this consultation is possible, it is hardly held due to its regulation. Article 71 of the LBRL requires the national Government’s prior authorization, thereby subjecting this participation initiative to stringent procedural requirements unparalleled in other legal systems.24 These procedural obstacles might explain why numerous municipal bylaws have tried to bypass the aforesaid stringent requirements by providing for citizen consultation mechanisms other than the “neighbor consultation” enshrined in the LBRL. This is the case of the municipal regulations for citizen participation in Madrid and Barcelona.25 Typically, public participation mechanisms have played a prominent role in two areas: urban planning and local budgeting. Public consultations during the drafting of urban plans (not only policy instruments but actual binding provisions in Spain) are governed by each autonomous region’s Urban Planning Act. Urban planning acts usually provide for two public consultation stages prior to the plan’s final approval.26 The strictness of judicial review regarding the enforcement of this public consultation stage is as important as the wording of legislation, since the absence thereof renders the urban plan null and void.27 Furthermore, courts are also fairly strict when it comes to ensuring that the actual comments submitted by citizens be taken into account by the relevant municipality. Also, courts require municipal councils to appropriately justify why they reject or disregard the citizens’ comments. In fact, although legislation and courts of law openly facilitate public participation during the drafting of urban plans, there is very

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little citizen involvement in practice. Usually, only landowners affected by urban planning engage in these public consultations, and they tend to be reactive rather than proactive.28 Participation in local budgeting is also regulated in many municipalities, thereby giving rise to participatory budgeting.29 There are diverse regulatory approaches to this process. However, citizen participation usually stems from a prior municipal agreement setting out the funds and parts of the budget allocated to participatory budgeting. Municipalities are not legally bound by citizen preferences. Municipal councils ultimately approve the budget based on their political criterion. Nonetheless, in municipalities where a participatory budgeting process is in place, council members explicitly express their political commitment to meet citizens’ demands that come out from these participatory processes. Although national and regional legislation and local regulations (bylaws) foster participatory budgeting, these participation mechanisms are not very widely spread. Even in those cities that have actually implemented participatory budgeting processes (Seville, Cordoba, Getafe, Madrid, Algete, and Albacete), citizen involvement remains low.30

Bottom-up participation Alongside the previous examples of top-down participation, where municipalities engage citizens in decision-making by asking them about public policies, recent legal provisions (local, regional and national) have regulated bottom-up or spontaneous citizen participation, in which citizens submit proposals directly to municipal councils regarding specific measures or public policies. First, under Article 70(bis)(2) of the LBRL, a qualified majority of voters (at least 10% in municipalities exceeding 20,000 people) are entitled to submit specific proposals to the local government, which must be subsequently voted on in the municipal assembly.31 Due to its inherent legal complexity, this form of bottom-up participation has barely been used so far. Perhaps because of these procedural obstacles, some municipal bylaws have recently provided for alternative mechanisms for citizens to submit proposals, often online.32 Under these alternative mechanisms, any neighbor may submit a proposal. If a given percentage of neighbors (1% in Madrid) support his/her initiative, it can be submitted to all citizens for consultation or directly embraced by local authorities. Municipalities are not legally bound by these proposals, yet local authorities often declare that they will politically commit to implementing any initiatives for which there is enough public support. So far, and although these initiatives are fairly recent, there are two clear conclusions to be drawn: there are few citizen proposals, and those that actually go through are usually developed or adjusted by local governments.33

Challenges and lessons from the Spanish case The various forms of citizen participation pose somewhat common challenges, difficulties, and concerns. Some of these are practical issues. Others are matters

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arising from the regulatory provisions governing public participation. It is quite challenging to provide an overall assessment of how these mechanisms are performing and even more so to draw lessons therefrom, since Spain is highly diverse at the local level, as evidenced by the existing 8,126 municipalities. This diverse reality prevents a highly accurate assessment. Despite these difficulties, some aspects of citizen participation mechanisms can be addressed generally in this final section. It is worth examining the subjects of participation, i.e., who participates? This matters because any form of participation lacking diversity and inclusiveness would defeat the purpose of democratic citizen participation. Public participation mechanisms have typically been addressed to associations representing certain interests such as neighborhood associations and others. Certain pieces of regional legislation expressly provide for the involvement of neighborhood associations in local rulemaking procedures (Aragon, La Rioja, and the Balearic Islands).34 The risk of this approach, which has actually occurred in some cases, is the professionalization of participation (the so-called participatory bias)35 and that the specific neighbors’ interests may be set aside by the interests of associations. This becomes a more significant issue in the event of largely unrepresentative associations (with few members) subsidized by municipalities; these subsidies may institutionalize associations.36 As a result of the inherent limitations of this associative approach to participation, it has been supplemented by individual-oriented participation mechanisms,37 such as the aforesaid public consultations. Participation is further individualized by means of online formats. This recent individualization of participation may foster a social participation culture. Nonetheless, it raises concerns about bringing together and making compatible individual opinions and about how to deal with those opinions in the absence of collective stakeholders.

Online participation tools Along with traditional or “analogue” participation mechanisms, municipalities have recently come up with numerous online participation tools, either through local transparency or open government platforms (required under Article 70(bis) (3) LBRL), or by means of specific participation sites like www.decide.madrid. es.38 New technologies have brought a revolution to public participation.39 They have widened the scope of participatory processes, which are now available to many more citizens. They have also turned the “no time to participate” issue into a surmountable obstacle, particularly in large cities. Nevertheless, there are some drawbacks to online participation. On the one hand, whereas it allows for multiple and ongoing participation of digitally literate citizens, it hinders or prevents participation by a large portion of the population (mostly the elderly) with no digital literacy. This is even more troublesome where the results of online participation are binding, whether directly or indirectly, on local governments. On the other hand, since participation is easy for those with digital skills, a single “digitally skilled” citizen might give his/her opinion about many different issues (all of them subject to public consultation through the open government platform).

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Minority opinions voiced by a few highly engaged citizens might appear more significant or more widely shared. If these opinions ultimately give rise to a political decision, the underlying purposes of public participation would be defeated. Along these lines, Article 69(2) of the LBRL expressly prevents citizen participation mechanisms from hindering the exercise of public duties by democratically elected officials.40

Legal and technical considerations On another note, experience shows that participatory processes sometimes fail because the subject of consultation is illegal or unfeasible, typically when local participatory processes deal with issues that local governments are not responsible for and, therefore, cannot implement citizens’ proposals. Broad citizen consensus regarding illegal or unfeasible proposals give rise to frustration whilst weakening the culture of participation. Therefore, any matters submitted for public consultation should be limited. Concerning top-down participation (i.e., municipalities asking citizens), the municipality’s legal counsel can easily and smoothly trim or refine the subject of consultation. However, spontaneous and bottom-up participation poses greater challenges; citizens themselves define the matter submitted to public participation mechanisms. In these cases, the applicable legislation should provide for a preliminary procedure so that local authorities can examine and test the legal and economic feasibility of the citizen proposal. Under this preliminary procedure, any illegal or economically unattainable initiatives will be excluded from public consultation.41 This kind of regulation is fairly sophisticated. Setting out multiple grounds for veto by local authorities can diminish spontaneous participation. Nevertheless, processing unfeasible citizen proposals (either because the relevant local government is not empowered to regulate the matter, or because the proposal affects third-party rights, or because it is blatantly unlawful) ends up frustrating citizens who have invested time, effort, and expectations,42 thereby weakening public participation. In other words, if the decision reached through citizen participation mechanisms ended up being upheld, yet unachievable, this would breach citizens’ expectations. An appropriate legal mechanism for local governments to monitor citizen proposals could be to provide for local review as early as possible in the process, without turning this review into an authorization stricto sensu. Accordingly, municipalities would be cooperating with the initiative promoters in order to render the proposals feasible from the outset. The foregoing is also connected with the technical quality of proposals. It is not only about rendering the matter feasible from an economic and legal standpoint. Proposals should be suitable for a participatory process. Bad proposals lead to poor citizen participation. Any proposals related to highly technical management issues (such as those regarding water supply management) are not suitable for public consultation, unless participatory processes are accompanied and assisted by experts. For the foregoing reasons, internal review by specialized bodies is required when the municipal council defines the subject of consultation (i.e., in

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top-down participation procedures). These specialized bodies must design the format, wording, and contents of the relevant citizen participation mechanism. Regarding bottom-up participation, it could be advisable to request assistance from technical experts within the municipal council.43 Public consultations must be consistent with the underlying rationale of public participation, not an instrument at the service of initiative promoters. There are significant legal aspects tied to the outcome or results of citizen participation procedures. First, the degree of actual participation of citizens or turnout threshold should be taken into account. The second aspect, which is closely connected with the first, is the potential binding effect of citizen participation procedures. Both aspects are interconnected. On an a priori basis, minimum turnout thresholds only matter if the relevant public consultation has binding legal force. As stated earlier, under Spanish law, Article 69(2) of the LBRL, public participation procedures lack legally binding effects.44 Put differently: proposals coming from citizen participation processes are not translated automatically into binding decisions as decision-making powers rest only with democratically elected local bodies. Only regarding “citizen rulemaking initiatives,” Article 70(bis)(2) of the LBRL provides that the relevant public proposal must be voted by the municipal assembly.45 Due to these direct legal effects of citizen initiatives, the applicable legislation for this particular case requires a minimum turnout threshold. For the rest of the cases, it is unreasonable that minimum thresholds be laid down in regulatory provisions. The political effects of high or low citizen turnout rates regarding a specific local policy decision must revolve around a democratic rationale. It could be argued that only decisions in which there has been a minimum level of citizen participation – the threshold to be determined by the legal provisions – should be implemented. But in fact, setting out thresholds in regulatory provisions where local governments are not legally bound by the outcome of public consultations can lead to undesired results: it might lead to the social perception that municipal councils are indeed bound if thresholds are reached. And it can unnecessarily delegitimize citizens’ decisions that were made without reaching a minimum turnout threshold. Different is the case of a local authority declaring that it will be politically bound by the outcome of a participatory process. In this case, it could even make sense to provide a minimum turnout threshold for this political self-binding effect. However, this would be a political threshold, not quite a legal one.

Final reflections The quest for citizen participation, as well as for strengthening public participation mechanisms as a form of decision-making, is fully in line with a normative view of strong democracy.46 The NUA is aligned with this value of democratic systems functioning and puts it in the center of its strategy. “Ensuring public participation” is among its main principles, but it is not limited to just a motto. Somehow the NUA anticipates that participatory processes are complex and do

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not always manage to reach positive outcomes, so it remarks that participation has to be “effective” and “meaningful.”47 And even in developing more specific aspects of the NUA, like the means of implementation, it points to public participation for “fair tendering processes, procurement mechanisms and reliable budget execution.”48 In sum, participation is an overarching principle in the NUA that serves both as a method for public decision-making and as an aim in itself for local governments. As we have seen in this text, participation mechanisms pose many challenges. Thanks to the longstanding implementation of these participatory practices, we have gained knowledge about potential drawbacks and how to overcome them. The case of Spain, for instance, has shown that the legal framework is neither the only nor the main obstacle for an effective participation. Specific elements in each participatory process implementation, such as political leadership, technical aspects, financial and personal resources, or inclusivity, or in the society and its level of public engagement must be addressed as well.

Notes 1 This chapter has been written within the framework of the European Union’s Horizon 2020 research and innovation program under grant agreement no. 823961. 2 G.A. Res. 71/256*, ¶ 41, annex, New Urban Agenda (Dec. 23, 2016) [hereinafter New Urban Agenda]. The NUA was adopted at the United Nations Habitat III Conference on Housing and Sustainable Urban Development, in Quito, Ecuador in 2016. 3 Sherry R. Arnstein, A Ladder of Citizen Participation, J. AM. PLAN. ASS’N, July 1969, at 216. 4 MINISTERIO DE FOMENTO, GOBIERNO DE ESPAÑA, AGENDA URBANA ESPAÑOLA 2019 (2019). 5 Archon Fung, Democratizing the Policy Process, in THE OXFORD HANDBOOK OF PUBLIC POLICY 669–85 (Michael Moran, et al. eds., 2008). 6 Amaya Casado Echarren, El modelo de democracia directa en la ciudad de Madrid: el marco jurídico de los procesos participativos. Análisis de los diferentes mecanismos de participación y sus condicionamientos. Experiencias participativas en el ámbito urbanístico (los planes de barrio), in RETOS Y NUEVAS PERSPECTIVAS DE LA PARTICIPACIÓN PÚBLICA 177, 239 (Marta Lora Tamayo Vallvé ed., 2018). 7 Mariano Torcal & José Ramón Montero, La formación y consecuencias del capital social en España, REVISTA ESPAÑOLA DE CIENCIA POLÍTICA, Apr. 2000, at 79. 8 José Luis Fernández Martínez, Instituciones de democracia participativa a nivel local: características e impacto de las propuestas participativas sobre políticas públicas, 9 ANUARIO DE DERECHO MUNICIPAL 143 (2015). 9 C.E., B.O.E. n. 311, Dec. 29, 1978 (Spain). 10 Reguladora de las Bases del Régimen Local (B.O.E. 1985, 5392) (Spain) [hereinafter LBRL]. 11 Medidas para la Modernización del Gobierno Local art. 70 (B.O.E. 2003, 23103) (Spain). 12 Instituciones Locales de Euskadi art. 67–82 (B.O.E. 2016, 4171) (Spain). 13 Participación Ciudadana de Andalucía (B.O.E. 2018, 1548) (Spain). 14 See e.g., Ordenación del Territorio, Urbanismo y Paisaje, de la Comunitat Valenciana art. 6(5), 13, 53 (B.O.E. 2014, 9625) (Spain).

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15 Joan Font, et al., The Causes of Local Participation, in PARTICIPATORY DEMOCRACY IN SOUTHERN EUROPE: CAUSES, CHARACTERISTICS AND CONSEQUENCES 37 (Joan Font et al. eds., 2014). 16 Kerman Calvo & Iago Álvarez, Limitaciones y exclusiones en la institucionalización de la indignación: del 15-M a Podemos, 24 REVISTA ESPAÑOLA DE SOCIOLOGÍA 115, 115–22 (2015); Ernesto Castañeda, The Indignados of Spain: A Precedent to Occupy Wall Street, 11 SOC. MOVEMENT STUD. 309, 309–19. 17 See e.g., Reglamento Orgánico de Participación Ciudadana de Madrid art. 60, 65 (B.O.C.M. 2004, 147) (Spain) [hereinafter ROPCM]; Reglamento Orgánico de Participación Ciudadana de Barcelona art. 38, 60 (B.O.P.B. 2017) (Spain) [hereinafter ROPCB]. 18 Alfredo Galán Galán, La desconcentración territorial en los municipios: los distritos, in LOS DISTRITOS: GOBIERNO DE PROXIMIDAD 17, 87 (Cayetano Prieto Romero ed., 2007). 19 Tomás Font, Los distritos en la organización municipal: descentralización y regeneración democrática, 9 ANUARIO DE DERECHO MUNICIPAL 97, 113 (2015). 20 RAMÓN GALINDO CALDÉS, LA ORGANIZACIÓN TERRITORIAL EN LOS MUNICIPIOS: LOS DISTRITOS 203 (2014). 21 Reglamento Orgánico de Funcionamiento de los Foros Locales de los Distritos de Madrid (B.O.C.M. 2017, 7). 22 S.T.S, Apr. 8, 2010 (J.T.S. No. 4301) (Spain); S.T.S., July 23, 1997 (J.T.S. No. 5273) (Spain). 23 Procedimiento Administrativo Común de las Administraciones Públicas art. 133(1) (B.O.E. 2015, 10565) (Spain). 24 SEVERIANO FERNÁNDEZ RAMOS, LA INFORMACIÓN Y PARTICIPACIÓN CIUDADANA EN LA ADMINISTRACIÓN LOCAL 296 (2005). 25 ROPCM, supra note 17, art. 27; ROPCB, supra note 17, art. 66. 26 See, e.g., Suelo de la Comunidad de Madrid art. 56 (B.O.E. 2001, 18984) (Spain); Ordenación Urbanística de Andalucía art. 29(1) (B.O.E. 2003, 811); Suelo y Urbanismo art. 87 (B.O.E. 2011, 17400) (Spain); Decreto-Legislativo del Gobierno de Aragón, por el que se aprueba el texto refundido de la Ley de Urbanismo de Aragón art. 48 (B.O.E. 2014, 90410) (Spain). 27 S.T.S., June 29, 2017 (J.T.S. No. 1145) (Spain). See GABRIEL DOMÉNECH PASCUAL, LA INVALIDEZ DE LOS REGLAMENTOS 264 (2001); see also José Luis Bermejo Latre, La información administrativa y la participación del público en materia de urbanismo, 14 REVISTA ARAGONESA DE ADMINISTRACIÓN PÚBLICA 405, 408 (2013). 28 JOSÉ MARÍA BAÑO LÉON, DERECHO URBANÍSTICO COMÚN 177 (2009); Bermejo Latrre, supra note 27, at 410. 29 See e.g., ROPCM, supra note 17; Acuerdo de la Junta de Gobierno de la Ciudad de Madrid por el que se aprueban las directrices para el desarrollo de los presupuestos participativos a través de la web de Gobierno Abierto, art. 27 (B.O.A.M. 2016, 7604) (Spain). 30 Carmen Pineda Nebot, Los presupuestos participativos en España: un nuevo balance, REVISTA DE ESTUDIOS DE LA ADMINISTRACIÓN LOCAL Y AUTONÓMICA, Sept.– Dec. 2009, at 279, 283. 31 Procedimiento Administrativo Común de las Administraciones Públicas, supra note 23, art. 70(2). 32 ROPCM, supra note 17, art. 22; ROPCB, supra note 17, art. 19. 33 Fernández Martínez, supra note 8, at 173. 34 Administración Local de Aragón art. 140(1)(c) (B.O.E. 1999, 10151); Administración Local de La Rioja art. 151(1)(c) (B.O.E. 2003, 5909); Municipal y de regimen local de las Illes Balears art. 102(c) (B.O.E. 2007, 1893). 35 Clemente J. Navarro Yáñez, El sesgo participativo. Introducción a la teoría empírica de la democracia participativa, 61 PAPERS: REVISTA DE SOCIOLOGÍA 11–37 (2000).

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36 Fabiola Mota Consejero, La Realidad Asociativa en España, in ¿EXISTE SOCIEDAD CIVIL EN ESPAÑA? RESPONSABILIDADES COLECTIVAS Y VALORES PÚBLICOS (Joan Subirats ed., 1999). 37 Casado Echarren, supra note 6, at 201. 38 Crea una propuesta que quieras que el Ayuntamiento de Madrid lleve a cabo, DECIDE MADRID, www.decide.madrid.es/ (last visited May 9, 2019). 39 Elena García Guitián, Democracia digital. Discursos sobre participación ciudadana y TIC, 173 REVISTA DE ESTUDIOS POLÍTICOS 169 (2016). 40 LBRL, supra note 10, art. 69(2). 41 Casado Echarren, supra note 6, at 211. 42 Patricia García-Espín and Manuel Jiménez Sánchez, Los procesos participativos como potenciadores de la democracia. Explorando los efectos, mecanismos y evidencias en la sociedad civil, 177 REVISTA DE ESTUDIOS POLÍTICOS 113 (2017). 43 Casado Echarren, supra note 6, at 198. 44 See LBRL, supra note 10. 45 Id. art. 70(bis)(2). 46 BENJAMIN BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE (2004). 47 New Urban Agenda, supra note 2, ¶¶ 26, 48. 48 Id. ¶¶ 13(c), 14(a), 26, 138.

6

Cities, data, and the New Urban Agenda Beatriz Botero Arcila

Introduction Digital technologies are transforming key aspects of the economy, social life, and government. They are, too, transforming cites. We see it with the advent of ridehailing and micro-mobility applications and services, like shared electric scooters and bikes. We see it in shared work or living space companies, so-called smart street lights that change lights according to traffic, and 311 government lines. This transformation holds great promises for human well-being and sustainability in cities, particularly in relation to our urban present and future. Making cities for all that are safe, healthy, accessible, and affordable, with vibrant economies that offer opportunities for all its inhabitants, requires smart and efficient use of resources,1 and thus digital technologies will be important to achieve the vision of the New Urban Agenda (NUA). However, the digital transformation and particularly its impact in urban centers also pose important risks, such as increasing inequality and discriminatory patterns, and increasing unsustainable patterns of consumption and resource use. Between a future in which the objectives of the NUA are met and a future where the reckless implementation of emerging technologies in cities increases or maintains persistent forms of poverty, inequality, and environmental degradation, there are key institutional and political choices to make. This is particularly so regarding the implementation and adoption of digitally powered services in cities. Who owns, profits from, accesses, and decides about communications infrastructure, data, and digital services in cities will partly determine how the digital transformation will play out in different polities and who will reap the benefits. Thus, having a digital infrastructure that helps governments take the right decisions to meet the objectives of the NUA becomes crucial. This chapter focuses on the institutional choices that governments at all levels, but especially local governments, can make regarding the entitlements over the data that is collected and processed in cities. Data drives many of the applications and technologies that are advancing this urban and digital transformation, and with the right institutional and digital infrastructure, data can be used in ways that will help shape the urban future that the NUA envisions. This chapter argues that governments should increasingly strive to create an urban digital

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infrastructure, comprised of the data that is collected by local governments, and the digital infrastructure needed to analyze it. This can be used as the basis to make better urban planning decisions, provide better, more sustainable, efficient, and just urban services, and encourage entrepreneurship and innovation initiatives that aim to meet the goals of the NUA. This will require a data management strategy that allows different agencies to access data sets collected by other agencies, strict privacy and security protocols and standards, and some sort of access and control over hardware and data collected by public contractors. To the extent their circumstances allow, cities should make the most out of their limited regulatory powers and their public procurement to encourage the safe collection, storage, analysis, and publicity of data. Because city power is limited, however, higher spheres of government need to be equally active and engaged to achieve this goal. The chapter proceeds as follows: the first section starts with some key definitions that might be skipped by readers familiar with the Internet of Things (IoT), Artificial Intelligence (AI), and Big Data. The second section explains the relationship between today’s unprecedented urbanization and the digital transformation, and how the latter poses important risks and opportunities to meet the commitments of the NUA. The third section briefly maps the debate around the implementation and deployment of smart city technologies and urban technology (urban tech) in cities and develops the idea of how data could be treated as a meta utility and/or digital infrastructure. The fourth section clarifies the scope of possibilities for local governments to reap the benefits of the digital transformation or even shape it, and makes some remarks on the limits of city power and why cities won’t be able meet these challenges alone. The final section proposes a few beginning points that all government spheres could start considering to make the digital transformation work to meet the commitments of the NUA.

What is the Internet of Things, what are smart cities, and how could they be deployed to advance the NUA? To understand the potential of data and data analytics in helping governments meet the goals of the NUA and why entitlements over these resources matter, it is important to start with at least three key definitions: IoT, Big Data, and AI. IoT refers to the interconnection of objects such as sensors, smartphones, wearable health trackers, GPS, and video surveillance cameras that collect vast amounts of data. The aggregated data they collect permits understanding, in real time, of how people interact with a given infrastructure.2 This requires Internet connectivity. Ride-hailing companies, like Uber or Lyft, can be understood as IoT businesses because they use connected devices such as smartphones to provide their service; for example, by locating drivers and riders, matching them, and determining their prices based on demand and supply in a given place at a given time. Big Data commonly refers to the vast amounts of data that can be captured in a digital environment, for example, by interconnected devices like in the IoT or by websites on the Internet. Its value relies on the capacity of inferring correlating patterns, with a high degree of certainty.3

Cities, data, and the New Urban Agenda 89 Finally, AI is the ability of machines and systems to acquire and produce knowledge about something in particular based on highly sophisticated data analytics.4

Cities, technology, and the NUA Increasingly, scholars, policymakers, and activists are focusing on the various risks and opportunities that the deployment and implementation of smart city technologies and urban tech in cities represents. Some commonly referred-to risks are that inequalities may rise in the labor market with the gig economy or that some technologies have discriminatory biases programmed into them. This section briefly outlines the debate on the risks that rise when these technologies are implemented by and within city governments for the purposes of city-planning and providing services. It takes a political economy view of technology, which suggests that no one narrative about the adoption of a particular technology is completely right, as one-directional narratives often take a narrow view on how smart city technologies work and understate the degree to which institutions and the legal frameworks in place shape its adoption and diffusion patterns, and the effects they have.5 The urban environment, the information and knowledge spillovers of agglomeration,6 and the higher degrees of connectivity of cities and people in cities facilitate the aggregation and analysis of vast amounts of data. Data can lead to the provision of efficient and tailored services and the efficient allocation of scarce resources.7 Data is collected from devices and objects deployed by city government themselves (such as traffic or weather sensors), and from devices deployed by private parties and individuals, like wearable health monitors or smartphones. Unsurprisingly, as smartphones, sensors, layers, and connectivity become widespread in cities, technology companies increasingly cater to local governments – so-called smart city technologies – and to urban dwellers – so-called urban tech. They offer a various array of products and services based on Big Data analytics that offer more efficient alternatives to various urban issues, from mobility to public utilities management and provision or safety and security.8 The combination of these three elements – data, hardware, and algorithms, which has been labeled as a technological meta-utility9 – increasingly mediates the provision of many public services, utilities, and urban services as smart city technologies and urban tech platforms spread. There is significant potential in the efficiency-enhancing aspirations of these technologies in achieving many of the goals outlined in the NUA: turning our cities into places where everyone is able “to inhabit and produce just, safe, healthy, accessible, affordable, resilient and sustainable cities and human settlements to foster prosperity and quality of life for all.”10 Indeed, providing the sustainability and development tools the NUA calls for, such as mechanisms of civic engagement, various means of urban mobility, affordable housing, public services, and general urban infrastructure will require great coordination among different government spheres, the private sector, and civil society, but will also require fine-tuning how city resources are used and spent.11 Data

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analytics, and thus smart city technologies, promise to be invaluable tools to aid government in doing just that. According to McKinsey Company’s 2018 report on Smart Cities, “Smart city applications can improve some key qualityof-life indicators by 10 to 30 percent.” By making resource administration more efficient and ‘smart’, smart city applications can decrease the disease burden from 8–15%, and can diminish greenhouse gas emissions up to 15%, water consumption by up to 30%, un-recycled waste up to 20%, commute time up to 20%, fatalities by up to 10%, and crime incidents by up to 40%, among others.12 At the opposite end of the spectrum, however, there is also concern about the implementation and adoption of these technologies in cities. Some implementation of these technologies can facilitate massive corporate and government surveillance, and they can have potentially detrimental social, political, and discriminatory effects. This has been documented, for example, in the realm of racial bias and predictive policing.13 Another strand of critique focuses on smart city rhetoric and deployment, arguing that smart city providers often disregard that cities are complex social, economic, and political entities with particular histories. Over-emphasizing efficiency as the main goal of smart city applications obscures that cities and the provision of many city goods and services are the sites of struggle among competing interests, dismissing the value of politics and participatory democracy.14 Indeed, the emphasis on efficiency might also obscure that efficient outcomes are not necessarily always just and that efficiency itself is far from a neutral concept because it depends on initial entitlements. Finally, smart city technologies are seen as threatening to further privatize cities and as the extension of a capitalist and neoliberal model of the city, because they hand out the provision of key city services to tech companies whose main priority is to make profit rather than pursue public good.15 Rather than settling with one of these two opposing narratives, a political economy view of technology suggests that a technology’s architecture, the institutions, and the legal frameworks in place when technology is adopted and diffused are key to understanding the effects it has.16 Key in the sustainable and equitable implementation of these technologies are thus the economic and institutional capacity of particular cities, for example, the internal procedures of city governments and the participation of the public, and many other institutional and political choices that may have little to do with technology itself, such as taxing the use of private cars, implementing mandatory recycling, and so on.17 Ultimately, technology can help governments do what they want to do better, but it won’t do it by itself. Part of this institutional framework consists of the entitlements and infrastructure over the data, software, and hardware that drives these technologies and that is collected in public spaces and from the public. Having some sort of access or control over that data and digital infrastructure that are used to provide many urban services is a first step to ensure that policymakers and voters can make the best decisions, and thus make meaningful choices about the future of their cities.

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Technological and data sovereignty: Open Data, Barcelona, and Cities for Digital Rights The impulse for using data in city government and giving cities more control over data and their digital infrastructure is slowly gaining international traction. Open Data has been a popular movement for a while and is an important antecedent to thinking of a data infrastructure for cities. Many cities have launched their own initiatives: Barcelona, for example, has set in place an ambitious Technological Sovereignty Plan, which should allow the municipality and its citizens to “determine their own priorities in terms of the direction and use of technological innovations, with clear social benefits and public returns.”18 According to the Barcelona Digital City Plan, this also means “rethinking the economic model to support new economies like the solidarity, collaborative and digital economy.”19 New York, Boston, and the Shareable City Network of the EU have also started to set policies in place to make the digital transformation work for them. Finally, earlier in 2019, the Cities Coalition for Digital Rights (Coalition), which gathered thirty cities at the time of this writing, was launched by New York, Barcelona, and Amsterdam with the support of the United Nations Human Settlements Programme as a roadmap for cities. The Coalition’s idea is the commitment “to eliminating impediments to harnessing technological opportunities that improve the lives of our constituents, and to providing trustworthy and secure digital services and infrastructures that support our communities.”20 This section briefly outlines the Open Data movement, the elements of Barcelona’s strategy, as it is perhaps one of the most ambitious in terms of achieving some kind of local technological sovereignty, and the principles endorsed by the Coalition. The section that follows will suggest how policymakers might prevent some of the risks that these approaches generate.

Open Data: basic data infrastructure Much of the idea of having a public data infrastructure, both as a resource for the government and for citizens, draws significantly from many of the ideas of open data and open government initiatives. The open data movement began in the 2000s, and it encouraged government agencies at all levels to launch open data repositories, where governmental data is publicly available, and provide analysis tools. The goal was to increase governmental transparency, encourage agencies to use their own data releases to guide public policy decisions, and at the municipal level, to use data collected by different municipal agencies to guide decisions.21 The data releases were also supposed to create economic opportunities for established firms and entrepreneurs. Established firms have data to drive their economic decisions and investment based on more data, and the data can be used to find opportunities to create applications and services that create value for the public.22 Open data portals often rely on state public records laws, and they have been found to improve governments by making them more accountable and efficient, empower citizens by facilitating informed decision-making and

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mobilization, create economic opportunities, and help policymakers and others “find solutions to big, previously intractable public problems (e.g., related to public health or global warming).”23 There is not a lot of research on economic impact, but its effects are potentially significant. An often-cited report by Deloitte argues that Transport for London’s open data portal drove the creation of more than 600 apps, was used by 42% of Londoners, and is generating economic benefits and savings somewhere between £90 million pounds and £130 million pounds for travelers, the city of London, and the Transport for London agency annually.24 It has also helped grow London’s tech economy significantly and created 700 jobs.25 In the US, similar situations have been found. New York’s Business Atlas allows small businesses to use data to identify where to open and grow their companies, and sites like Rentlogic use municipal open data to allow people to search for 311 complaints and inspection violations filed for apartment buildings in New York City.26 Efforts to create a data infrastructure can be built on open data portals by expanding and adding more data sets or establishing as a default that all nonsensitive information that city governments own be made available to the public. This requires, on the one hand, careful examination of what information should not be public, on security grounds, for example, and ways to make sure data releases are careful not to release citizens’ personal data.27 On the other hand, it also requires determining whether and when data collected by public contractors should be part of the infrastructure too, taking into account whether the software and hardware required to collect, analyze, and/or store the data should be public or be under the control of the city government, and to determine when data stops being of use or should be deleted, for example. Beyond entitlements over the infrastructure itself, other background institutions are crucial to ensuring that such a public infrastructure delivers goods for a city: guaranteeing access to the Internet and computational capacity, creating institutional capacity among government officials, creating digital literacy, and having spaces to foster entrepreneurs and small and medium-sized enterprises that try to leverage this infrastructure for their business becomes crucial. Barcelona has since 2016 started to put such an infrastructure in place.

Barcelona’s Digital Plan Barcelona’s Digital Plan (the Plan) was launched in 2016 during Mayor Ada Colau’s term. The Plan is designed to use open source technologies and data to solve urban challenges, “such as access to affordable housing, energy transition and participatory urban planning for a sustainable, green city.”28 The Plan focuses on utilizing technology and data to provide better and more affordable services to citizens, making government more transparent, participative, and effective, and striking “a New Deal on Data to expand socially beneficial uses of data, while guaranteeing data sovereignty, ethics, and privacy.”29 For purposes of this chapter, I focus on the technological and data sovereignty element of the Plan. It

Cities, data, and the New Urban Agenda 93 is important to highlight, however, that the Plan foresees several accompanying measures to support entrepreneurship30 and educational programs that intend to reduce the digital gap, which makes the digital transformation accessible for all.31 Data sovereignty refers to the right to own one’s information. In Barcelona’s Digital Plan context, it refers to an individual’s right to own the information he or she produces, to the city’s right to own the information it produces, and to the city’s right to own the digital infrastructure with which the data is produced, analyzed, and stored.32 The concern over data sovereignty is that the data collected from people or from the city government can be used for purposes that are not under the control of the people or the government who produced the data, like predatory data-monetization practices.33 The human right to data sovereignty is contained, for example, in the European Union’s (EU) General Data Protection Regulation (GDPR) “to have control, at all times and in all relevant systems, over the collection, storage, use, transfer and publication of their data, whether it be of a technical scientific, economic, social or personal nature.”34 In Barcelona’s Plan, the concept is extended to assert that in the digital economy, data is a strategic asset, and when citizens produce it, it should be a common asset used towards the public good.35 Thus, the Plan creates a “data commons,” defining governance rules to use data collected by the city and the city’s partners, and a creation of a data lake, a type of data pool or centralized repository where the city stores all of its structured and unstructured data.36 In data lakes, data can be stored as-is, and different types of analytics can be run to guide better decision-making.37 These measures are not only intended to group the data that the city government and the third parties collect for policymaking purposes. By making the data open and following privacy and security guidelines, the data commons strategy seeks to improve local democracy, foster collaborative work, encourage innovation, and strengthen digital innovation.38 Finally, Barcelona’s data strategy also involves including in the data commons the data that citizens produced and that third parties collect.39 All that data, however, needs to be analyzed, since that’s where value comes from. Barcelona’s Digital Plan defines technological sovereignty as the principle according to which the equipment, IT resources, and support infrastructure and services are planned, budgeted, and purchased. Barcelona will strive to own the infrastructure, but also strongly prioritize vendors who use open standards, open source licenses, and interoperability standards to avoid vendor lock-in with tech providers.40 These measures allow the government and the community to have access and further control over digital infrastructure even when operated by third parties.41

Cities Coalition for digital rights The Coalition is “a joint initiative to promote and track progress in protecting residents’ and visitors’ digital rights.”42 The Coalition is intended to work in

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alignment with the Charter for Human Rights and Principles for the Internet43 and start further policy discussions around five core principles: 1 2 3 4 5

Universal and equal access to the Internet, and digital literacy Privacy, data protection and security Transparency, accountability, and non-discrimination in data, content, and algorithms Participatory democracy, diversity, and inclusion Open and ethical digital service standards44

New York City, Barcelona, and Amsterdam lead the Coalition with the support of UN-Habitat, the United Nations Offce of the High Commissioner for Human Rights (OHCHR), the United Cities and Local Governments (UCLC), and Eurocities. The Coalition has already been taking action towards promoting digital rights and launching campaigns to invite other cities to join with support of UN-Habitat.45 So far, however, this seems to have been the main involvement of UN-Habitat, and it is unclear what the Coalition’s connection with the NUA is or will be. One can suppose that this is partially because the Coalition is still young. In any case, both the NUA and the Coalition’s declarations seem to be aligned: they aim at establishing a set of principles ensuring justice and well-being drive policies that affect and are put in place in cities, in a broader sense, and in a digital economy. A good example of this is the fifth principle of the Coalition’s declaration: “Open and ethical digital service standards.” This principle also resonates strongly with Barcelona’s strategy: Everyone should be able to use the technologies of their choice, and expect the same level of interoperability, inclusion and opportunity in their digital services. Cities should define their own technological infrastructures, services and agenda, through open and ethical digital service standards and data to ensure that they live up to this promise.46 The Coalition’s inaugural press release defnes digital rights as human rights to which people and communities are entitled when accessing and using the Internet and digital technologies, such as privacy, data protection, and the right to self-determination. It also states that cities can work together “to solve common digital challenges.”47 Francesca Bria, Barcelona’s Digital Commissioner, stated that [c]ities are closer to the citizens and can become custodians of citizen’s [sic] digital rights. We need to ask what are the social, ethical and economic implications of emerging technologies such as . . . [AI] and make sure we bake rule of law, human rights and democracy into AI.48 At least eighteen other cities have joined the Coalition.49

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The limits of city power There is a lot to celebrate and learn about Barcelona using its public procurement and regulatory powers to foster a local digital environment that works for the public good. There is also much to celebrate in having several cities of the world joining this type of effort and introducing fair handling of data policies regarding their own data, and technological sovereignty–oriented policies that give cities at least legal control about their digital infrastructure. City power, however, is limited. Thus, establishing legal and policy frameworks for effective urban policies that lead to the creation of digital infrastructures that can be used to advance sustainability, local economic development, and equality in the world’s urban centers is not, and should not be, a task for cities alone. This section explores first, how the limited powers of cities may be insufficient, in most cases, for them to locally harvest data and create the meta-utilities needed to process it as a real type of public infrastructure. Second, this section addresses how cities could be more empowered to deal with some of these issues, but highlights why we should be at least cautious about wishing for cities to have too much power. Finally, the section cautions that no size will fit all cities, and points out that several cities will need assistance and cooperation from other partners and spheres of governments. Cities have limited powers, because like all forms of power, city power is complex and not harmless. Within their special and legal limits, cities have internal politics, varying institutional arrangements – different agencies, different powers, different budgets – and they interact differently with different parts of their citizenry. If we go over the principles of the Declaration of Cities for Digital Rights, for example, it is unclear that cities can comply with its commitments alone: in the United States, for example, most cities don’t have the power to provide quality Internet to their citizens,50 and they also often lack the resources to provide quality education programs that might bridge the digital gap. Cities, additionally, generally tend to compete for capital by offering friendly regulatory and fiscal treatment to corporations that may bring jobs and economic opportunities to them.51 Thus, it is foreseeable that cities that are not economically too strong, nor directly attractive for large firms – unlike New York City or Barcelona – will have less bargaining power when setting high standards in their procurement and licensing activities, and may end up, on the contrary, racing to the bottom to attract capital.52 Cities also have geographic boundaries that don’t necessarily coincide with the boundaries of an urban area, and thus mechanisms of inter-municipal cooperation or regional cooperation become crucial when thinking about infrastructures – digital or not – that serve a given urban area. Finally, even if cities had the power to set key conditions for the digital economy, too much local autonomy also poses dangers to having self-aggrandizing cities that set policies in place, which may harm or affect those who live outside the boundaries of a particular city, or even particular communities within a city.53 Thus, for example, privacy and security concerns about surveillance and policing minorities are very acute at the local level. Consequently, local governments are not necessarily always the ideal sphere of government to handle and administer vast amounts of aggregated urban data. Too much

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city-government intervention or solely city-led initiatives in how we distribute entitlements to create a workable digital urban infrastructure will not necessarily be ideal either. To tackle privacy and surveillance issues, Barcelona, for example, has set privacy-by-design and other privacy-enhancing practices, but these standards are set within the requisites already in place by the GDPR. Other cities and countries are experimenting with data trusts, which resemble Barcelona’s data lake and commons but are administered by third parties.54 Indeed, one of Barcelona’s Plan strengths is that it strongly relies on the legal background of Spanish national law, Catalonian subnational law, and EU law, which empower the city to create its Digital Plan. Indeed, the Plan applies the Spanish transparency and access to information laws, a Royal Decree that establishes an obligation to comply with open standards and re-use code if it exists and, as mentioned, the GDPR, among others. Not all cities in Spain are doing this, however, and thus the Barcelona example also shows that with their existing powers, cities can still do a lot. Additionally, since cities are closer to citizens, they should still strive to adopt good practices of digital rights protection in what is related to the collection of data they can regulate. We should think about them as important sites of experimentation to imagine and rethink how we conduct our urban lives in a digital world, and learn from them to perhaps build stronger legal frameworks of what works at the national or regional level, or to help weaker cities replicate what larger cities have done, like the educational programs intended to bridge the digital gap. It will be difficult, however, to have the sustainable and equitable urban future we envision if we leave it to cities alone to curve the digital revolution towards that end. This is particularly the case in cities that face steep inequality within their boundaries, like may be the case of many cities in the Global South or mediumsized cities with few resources. In such environments, creating a legal framework that facilitates the creation of a digital infrastructure will have little impact without, for example, guaranteeing access to the Internet, educating its citizenry and small and medium-sized businesses on digital literacy and how they can profit from it, and so on. To do this, further coordination, cooperation, and assistance from various levels of government and other partners, such as civil society but also private companies, might be of incredible importance.

The way ahead How, then, should we start thinking about an urban digital infrastructure that makes the vast amounts of data collected in the urban environment work towards a more equitable and sustainable urban future? The truth is that the answer will vary on a city-to-city basis, on a country-to-country basis, and perhaps even on a type-of-data to type-of-data basis. We can, however, draw some general lessons, many of them following the Coalition’s Declaration: An urban digital infrastructure that works for all requires universal and quality access to Internet. Internet access should be legally treated as any other

Cities, data, and the New Urban Agenda 97 public utility, and governments of all levels should work together and with private providers to make it affordable and accessible, foster a local competitive market, and subsidize or come up with different strategies to guarantee the access of those who can’t afford it themselves.55 We need privacy, data protection, and data security laws. Open pools of data and data sharing agreements, like Barcelona’s data lake and commons, or a data trust, should be created to make government better, facilitate urban planning, increase transparency, and also improve innovation and local economic opportunity. This should be done, however, within a privacy and security framework that protects the rights to freedom, auto-determination, and privacy of the constituency from which the data is collected. This can be achieved by setting standards and protocols that mandate, for example, privacy by design in data collection, or that differential privacy is applied to data sets even before they are sent to the data lakes administrators. Similarly, introducing interoperability mandates and mandatory data sharing of data that does not constitute a trade secret in local public procurement will allow local governments to avoid vendor lock-in and leverage the data collected to improve their own local government functions, decision-making, and urban planning. Mandatory open data, however, might be difficult to introduce, and some cities might prefer attracting companies in exchange for not opening these data sets. It is also unclear why data as infrastructure should imply always open data. Several types of public infrastructure, like electrical grids or pipes are not accessible to the public. This thus, should be left for individual cities to decide. Additionally, who administers the pool and sets its use standards is an important consideration. Neutral third parties, such as data trusts or independent agencies, might be one possibility. Ideally, the security, privacy, and data protection provisions, and interoperability mandates and data-sharing standards mentioned previously, should come from the national level. This will create a level playing field for local governments to build their particular strategies and might help hinder a race to the bottom: local governments might be easily tempted, or forced, to offer low local standards to companies that, in exchange, will be present in their cities, create jobs, visibility, and promise to make the local economy more dynamic. This represents a risk for the communities in these cities, but also risks deactivating the type of digital endogenous economy that a dynamic digital infrastructure is supposed to create locally. Standards on transparency, accountability, and nondiscriminatory use of data and algorithms should also be set nationally, and especially for services provided by or on behalf of public entities. In many countries, already existing antidiscriminatory laws and constitutional provisions can most likely be interpreted to be applicable to these technologies. Local governments can, and many times should, partner with private smart cities technology companies and urban technology companies to provide better mobility, utility provision, and services in the city. This should be done, however, under the privacy, transparency, interoperability, and data sharing conditions

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mentioned herein. This is especially so in cities with less institutional or technical capacity, which may be the case in many cities of the Global South. Even when an ideal type of national regulatory landscape is in place, cities should leverage their public procurement powers to the best of their capacity to include open and interoperable digital service standards, to avoid vendor lock-in, and to ensure that they own the data that the companies they contract with collect, so they can use it for urban planning and regulatory purposes. This must be done, however, within the privacy and ethical standards mentioned previously. For new urban services that impact local infrastructure, like ride-hailing companies, local governments should be given the power to regulate them if they generally have the power to regulate the analog version of these services (mobility or public transportation in general).56

Conclusion Digital technologies can be central to achieving visions of the NUA, such as the commitment to “sustainable transport . . . mobility . . . technology and communications networks and infrastructure.”57 They offer the possibility to understand and administer complex processes in ways that can help achieve the goals of a more sustainable and equitable future. To do so, we will need legal frameworks that allow local governments to experiment and try to leverage the digital revolution in their favor. To avoid a race to the bottom, however, all spheres of government should work towards making data collection and administration safe and respectful of individual rights. They should create mechanisms that allow data-sharing and data set publication that make urban planning and the regulation of new industries and services easier and more accurate for governments, while also facilitating innovation in both the public and private sector. Just as digital technologies offer great opportunities to meet the NUA’s vision, so does the NUA prove a valuable resource for policymakers at all levels looking to implement digital technologies in cities. As stated at the beginning of this chapter, nothing guarantees that the implementation of technology in cities and city government will lead to a sustainable, more just urban future; it may also lead to a future where technology sustains or increases economic inequality and environmental degradation. In this sense, the NUA proves to be a valuable roadmap to guide policymakers as they make key institutional and political choices regarding the implementation of technology in cities. This is an important task, and one that should not be left to cities alone. Cities are important sites for innovation and experimentation, but national and subnational governments will be crucial too in creating an urban digital infrastructure that serves the purposes of the NUA.

Notes 1 G.A. Res. 71/256*, annex, New Urban Agenda (Dec. 23, 2016) [hereinafter New Urban Agenda]. 2 OECD, GOING DIGITAL: SHAPING POLICIES, IMPROVING LIVES 19 (2019).

Cities, data, and the New Urban Agenda 99 3 Id. 4 Id. 5 See YOCHAI BENKLER, ET AL., NETWORK PROPAGANDA: MANIPULATION, DISINFORMATION, AND RADICALIZATION IN AMERICAN POLITICS 8 (2018). 6 See, e.g., JANE JACOBS, THE ECONOMY OF CITIES (1970); Edward L. Glaeser, Introduction to AGGLOMERATION ECONOMICS 1, 1–14 (Edward L. Glaeser ed., Nat’l Bureau of Econ. Research) (2010). 7 FED. TRADE COMM’N, THE “SHARING” ECONOMY: ISSUES FACING PLATFORMS AND REGULATORS (2016), www.ftc.gov/system/files/documents/reports/sharingeconomy-issues-facing-platforms-participants-regulators-federal-trade-commissionstaff/p151200_ftc_staff_report_on_the_sharing_economy.pdf. 8 NAT’L LEAGUE OF CITIES, CITIES, THE SHARING ECONOMY, AND WHAT’S NEXT 7 (2015), www.nlc.org/sites/default/files/2017-01/Report%20-%20%20Cities%20 the%20Sharing%20Economy%20and%20Whats%20Next%20final.pdf. 9 EVGENY MOROZOV & FRANCESCA BRIA, RETHINKING THE SMART CITY: DEMOCRATIZING URBAN TECHNOLOGY 22 (Stephanie Ehmsen & Albert Scharenberg eds. 2018), www.rosalux-nyc.org/wp-content/files_mf/morozovandbria_eng_final55.pdf. 10 New Urban Agenda, supra note 1, ¶ 11. 11 Id. ¶¶ 11, 13, 14, 31–34, 36, 46, 47, 55, 77, 87, 88, 91, 96, 114, 120, 126. 12 MCKINSEY GLOB. INST., SMART CITIES: DIGITAL SOLUTIONS FOR A MORE LIVABLE FUTURE 5 (2018). 13 See BEN GREEN, THE SMART ENOUGH CITY: PUTTING TECHNOLOGY IN ITS PLACE TO RECLAIM OUR URBAN FUTURE 97 (2019). 14 Rob Kitchin, Reframing, Reimagining and Remaking Smart Cities 7–8 (Maynooth University, Programmable City Working Paper No. 20, 2016). 15 Erica Pandey, The Trouble with Smart Cities, AXIOS (Mar. 21, 2019), www.axios. com/smart-cities-toronto-sidewalk-labs-las-vegas-cb0451e5-0b98-46c4-9ba34a7a04eb4ca7.html. 16 Benkler, et al., supra note 5, at 8. 17 See Green, supra note 13; Boston Smart City Playbook, CITY OF BOSTON https:// monum.github.io/playbook/ (last visited Apr. 27, 2019). 18 MOROZOV & BRIA, supra note 9, at 28. 19 Albert Canigueral, In Barcelona, Technology is a Means to an End for a Smart City, GREENBIZ (Sept. 12, 2017, 1:45 AM) www.greenbiz.com/article/barcelonatechnology-means-end-smart-city. 20 Declaration of Cities Coalition for Digital Rights, CITIES FOR DIG. RIGHTS, https:// citiesfordigitalrights.org/#endorse (last visited Aug. 19, 2019) [hereinafter Declaration]. 21 See Micah Altman, et al., A Harm-Reduction Framework for Algorithmic Fairness, 16 IEEE SEC. & PRIVACY 34 (2018). 22 Id. 23 STEFAAN VERHULST & ANDREW YOUNG, GOVLAB, OPEN DATA IMPACT: WHEN DEMAND AND SUPPLY MEET 5 (2016). 24 DELOITTE, ASSESSING THE VALUE OF TFL’S OPEN DATA AND DIGITAL PARTNERSHIPS 5 (2017). 25 Id. 26 Altman, et al., supra note 21. 27 Id. 28 See Canigueral, supra note 19. 29 Digital Transformation, CITY OF BARCELONA, https://ajuntament.barcelona.cat/ digital/en/digital-transformation (last visited Apr. 28, 2019) [hereinafter Digital Transformation]. 30 Digital Innovation, CITY OF BARCELONA, https://ajuntament.barcelona.cat/ digital/en/digital-innovation (last visited Apr. 28, 2019) [hereinafter Digital Innovation].

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31 Digital Empowerment, CITY OF BARCELONA, https://ajuntament.barcelona.cat/ digital/en/digital-empowerment (last visited Apr. 28, 2019) [hereinafter Digital Empowerment]. 32 Id. 33 See SHOSHANA ZUBOFF, THE AGE OF SURVEILLANCE CAPITALISM: THE FIGHT FOR A HUMAN FUTURE AT THE NEW FRONTIER OF POWER (2019). 34 BARCELONA CIUTAT DIGITAL, BARCELONA CITY COUNCIL DIGITAL PLAN 15 (2018), https://ajuntament.barcelona.cat/digital/sites/default/files/2018_mesuradegovern_ en.pdf. 35 Id. 36 Id. at 7. 37 See What Is a Data Lake?, AMAZON WEB SERVICES, https://aws.amazon.com/ es/big-data/datalakes-and-analytics/what-is-a-data-lake/ (last visited Aug. 19, 2019). 38 Id. See also BARCELONA CIUTAT DIGITAL, supra note 34. 39 See Thomas Graham, Barcelona is Leading the Fightback Against Smart City Surveillance, WIRED (May 18, 2018), www.wired.co.uk/article/barcelonadecidim-ada-colau-francesca-bria-decode. 40 BARCELONA CIUTAT DIGITAL, supra note 34, at 14. 41 BARCELONA CIUTAT DIGITAL, GUÍA SOBRE SOBERANÍA TECNOLÓGICA EN EL AYUNTAMIENTO DE BARCELONA (2017), https://ajuntament.barcelona.cat/digital/sites/ default/files/guia_adt_4_guia_sobre.pdf. 42 Press Release, NYC Mayor’s Office of the Chief Tech. Officer, City of Amsterdam, Ajuntament de Barcelona, New York City, Amsterdam, and Barcelona Launch Global Coalition to Protect Digital Rights (Nov. 14, 2018), https://citiesfordigi talrights.org/assets/NYC-AMS-BCN-LaunchGlobalCoalitionToProtectDigi talRights.pdf [hereinafter Cities Coalition for Digital Rights]. 43 The Charter for Human Rights and Principles for the Internet was established by the United Nations Internet Governance Forum in 2014. 44 Cities Coalition for Digital Rights, supra note 42. 45 See Global Campaign to Advance Digital Rights Targets 100 Cities in 100 Days, CITIES FOR DIGITAL RIGHTS, https://citiesfordigitalrights.org/campaign-100-cities-100-days (last visited Aug. 19, 2019). 46 Declaration, supra note 20. 47 Cities Coalition for Digital Rights, supra note 42. 48 Id. 49 Declaration, supra note 20. 50 See SUSAN CRAWFORD, FIBER: THE COMING TECH REVOLUTION—AND WHY AMERICA MIGHT MISS IT 191 (2019). 51 The seminal work is that of Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956). 52 In 2017, for example, Amazon started a ‘bidding war’ in North America among cities eager to attract the giant’s second headquarters. It announced that the new headquarters would have 50,000 workers and that it would spend $5 billion US dollars on new construction, and it invited cities to give it tax breaks and other incentives to choose the location. More than 200 cities presented bids. Insisting on these types of incentives and tax breaks to encourage tech investment in cities might eventually be harmful and not entirely beneficial for cities and citizens. See Nick Wingfield, Amazon Chooses 20 Finalists for Second Headquarters, N.Y. TIMES (Jan. 18, 2018), www.nytimes.com/2018/01/18/technology/ amazon-finalists-headquarters. 53 This would lead to a scenario similar to the “not in my backyard” phenomenon, which refers to cases when rather well-off communities oppose developments such

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54 55 56 57

as landfills or affordable housing, which in turn often leads to the concentration of these developments in less well-off communities. See GERALD E. FRUG, CITY MAKING: BUILDING COMMUNITIES WITHOUT BUILDING WALLS 9 (2001). See Data Trusts: Lessons from Three Pilots (Report), OPEN DATA INST. (Apr. 15, 2019) https://theodi.org/article/odi-data-trusts-report/. See CRAWFORD, supra note 50. This isn’t the case in all cities. New Urban Agenda, supra note 1, ¶ 50.

Part II

Urban form and inclusion at the nexus of law and the New Urban Agenda

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Human rights in the New Urban Agenda Towards inclusive urban planning Anne Klen-Amin and Rashid Abubakar

Introduction A distinctive feature of the New Urban Agenda (NUA) is its emphasis on inclusivity and human rights in urban development. Inclusivity (including ‘inclusion’ and ‘inclusive’) appears 46 times in the document while ‘rights’ is repeated 22 times.1 These themes run throughout and, even where they are not mentioned, their values are reflected in words such as ‘non-discrimination’, ‘equality’, ‘universal access’, ‘public participation’, ‘social function of cities’ and ‘people-centred approaches’. From the outset, the NUA makes it clear that inclusivity is at the centre of its objectives, as evidenced by the first paragraph under the ‘Our Vision’ section. It calls for cities for all, referring to the equal use and enjoyment of cities and human settlements, seeking to promote inclusivity and ensure that all inhabitants, of present and future generations, without discrimination of any kind, are able to inhabit and produce just, safe, healthy, accessible, affordable, resilient and sustainable cities and human settlements to foster prosperity and quality of life for all.2 The next paragraph highlights the inter-relatedness of inclusivity and human rights by grounding the NUA in the Universal Declaration of Human Rights, as well as other international human rights-related treaties and instruments such as the Declaration on the Right to Development.3 The NUA recognizes the importance of setting minimum standards required for people to live in freedom, equality and dignity. Human rights protect individuals and communities from the exercise of arbitrary power by the government and other private entities and allow them to freely make decisions and express themselves. Human rights entitle people to certain social goods and, in doing so, designate duty bearers mandated to ensure that the relevant rights are realized. In the urban context, human rights serve four main functions. First, they lay out the entitlements of urban dwellers, such as housing, health services, access to safe and affordable water and sanitation, security and recreation. Second, they establish the values that ought to guide the treatment accorded to individuals in

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urban environments. Human rights emphasize respect for human dignity, freedom, equality, non-discrimination, inclusivity, freedom from violence and the realization of the potential of all human beings. Third, they empower urban dwellers to participate in the governance and management of urban areas in addition to enabling them to seek accountability. For example, the right to vote enables them to choose their leaders, while the freedom of expression allows them to communicate and voice their concerns. Fourth, they guide the process of resolving competing interests for urban goods and services. These include the right to be heard, to be accorded a fair hearing and equality before the law. Therefore, human rights in the urban context include both passive and active rights.4 Passive rights of citizens are those that should not be infringed upon, whereas active rights may be asserted by citizens and require positive action by governments. Passive and active rights are quite distinct in their dynamics and require different forms of institutions and processes to be protected. In order to achieve sustainable and inclusive urban development where human rights are at the forefront, the NUA recognizes the critical role of spatial planning. It calls for a paradigm shift in the way urban areas are planned, designed, financed, developed, governed and managed.5 It further notes that spatial organization, accessibility and the design of urban space, and the provision of infrastructure and basic services ‘can promote or hinder social cohesion, equality and inclusion.’6 Indeed, urban planning and its regulatory aspects have been major contributors to urban exclusion and human rights violations on numerous occasions. As opposed to equitably mediating competing interests in the use of urban space, urban planning practices, particularly in developing countries, have engendered exclusion and marginalization. The modernist origins which sought to ‘civilize’ and ‘modernize’ countries in the Global South led to the transplantation of western models to developing countries without due regard to their cultural, social, political and economic contexts. These models established technical standards and processes in areas such as land markets, land use and zoning regulations, and building codes that could not be met by the majority of the population because they imposed time-consuming and high compliance costs on individuals. Consequently, urban dwellers, particularly the poor, are often forced into informality in urban areas. This is evidenced by the prevalence of informal settlements in most developing countries. Informality, however, means that while millions of poor people are, to some extent, able to enjoy the benefits of urbanization, they constantly live in a precarious situation. They are vulnerable to evictions and harassment from government authorities, often coupled with violence and the destruction of property. Their economic inclusion is curtailed due to a lack of legal protection and entitlement to public spaces, and sometimes due to the increases in capital and revenue streams enjoyed by landowners. They are also vulnerable to extortion and exploitation through arbitrary enforcement of the law and are excluded from urban governance processes. Moreover, they live under difficult conditions with inadequate access to services such as water, sanitation, health facilities, electricity, security, and housing, among others. It can thus be argued that urban planning in developing countries has not only failed

Human rights in the New Urban Agenda 107 to accommodate the way of life of the majority of urban residents but has also contributed to social and economic injustices. It has prevented the enjoyment of human rights by promoting exclusion, marginalization and poverty. In 1950, 30% of the world’s population was urban, and by 2050, 68% of the world’s population is projected to be urban, which is about 6.25 billion people.7 Of this population, 15% will be persons with disabilities and one-third will be living below the poverty line.8 If the inclusivity ambitions within the NUA are to be achieved, the role of urban law, particularly planning law, must be assessed and efforts must be made to reform it.

Urban exclusion: tracing the roots Modern spatial planning was a response to the rapid and chaotic growth of cities in Western Europe in the aftermath of the Industrial Revolution. At this early stage, planning was a tool to address the negative externalities of industrialization and urbanization with a particular focus on improved sanitation and the control of diseases and epidemics. Planning was seen as a technical activity to be carried out by trained experts. It involved the production of master plans, blueprint plans or layout plans, which showed a detailed view of the built form of a city once it attained its ideal end-state. Finally, planning was to be complemented by a development control system in the form of zoning schemes and building permits.9 In the decades that followed, modern planning was transferred to developing countries through colonization, international development agencies, foreign consultants and educational institutions. Colonialism was particularly influential in the transfer of planning models and laws. Britain, for example, introduced British urban forms and standards to its colonies in Asia and Africa. Indeed, a British colonial officer in India is quoted as saying, ‘[t]he fact is that no new city or town should be permissible in these days to which the word “Garden” cannot be rightly applied’.10 The transplantation was based on several assumptions: that it was only a matter of time before developing countries ‘modernized’ (and so it was imperative that ‘modern’ standards were put in place); that local governments had the technical capacity and resources to implement such plans; that western-style property rights systems – characterized by individual, freehold land ownership – were inevitable; that urban development could be anchored by controlling the use of land; the belief that a future ideal state of a city could be planned and achieved; and that once this happened, no further changes would occur.11 However, it seems that the importation of the planning models was not always in the interests of good planning but for exclusionary reasons. In colonial subSaharan Africa, for example, towns were usually zoned into different segments, with Europeans and the indigenous population living separately. The European zones were characterized by large, privately owned and well-serviced plots which were subject to European-style layouts and building codes, while most of the indigenous population resided in crowded, high-density areas with limited public infrastructure and services, and few or no building controls. As such, planning

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was used as a tool of social segregation and exclusion in many colonized territories. Urban planning is still widely manipulated for essentially similar purposes by urban elites. The assumptions on which the transfer of planning models was based did not hold in developing countries. Colonial urban fantasies were met with the reality of weak and under-resourced local governments, different land tenure forms, rapid urban population growth and expanding informal settlements. The consequence was the implementation of planning models and legal frameworks that were inappropriate to the contexts in which they were applied, which has forced people to operate outside the law.12 It is important to note that these models, and their legacies, have far outlived the colonial era. For example, many Commonwealth countries trace the origins of their current planning laws to the 1947 Town and Country Planning Act of England and Wales13 and have not fundamentally questioned the systems that this established.

How urban planning law undermines human rights and inclusivity Modern planning law in developing, and some developed, countries has frequently inherited several defects from its historical legacy. It fails to accommodate the way of life of the majority of inhabitants in rapidly growing, largely poor and informal cities and thus directly contributes to social and spatial marginalization or exclusion. It is not responsive to twenty-first century urban challenges such as climate change, informality, and food insecurity. Furthermore, by seeing planning as a predominantly technical activity to be left to the professional judgement of planners, urban planning law in many developing countries lacks transparency and excludes communities and other stakeholders from participating in the planning and management of urban areas.14 Urban planning law in developing countries, including land use zoning and building regulations, usually requires compliance with particular forms of land tenure, building forms and construction materials. These often embody European standards, building technologies and imported materials. Coupled with requirements for setbacks, minimum plot sizes, coverage, on-site parking, etc., make it impossible for the urban poor to reside within urban areas formally due to the costs and complexity of regulatory compliance and the burden of the process. In Kenya, for example, the Physical Planning (Building and Development) (Control) Rules of 1998 and Building Code of 1968 prohibit the construction of buildings with second-hand materials15 and provide that domestic buildings should leave an open space of at least 6 metres (20 ft.) extending throughout the whole width of the front of the building.16 The latter is clearly inconsistent with the reality of space constraints in slums while the former fails to consider the economic situation of slum dwellers in that second-hand materials may be the only affordable option for them. A study conducted in nine cities in Africa, Asia and Latin America shows that the unsuitability of planning and building standards to the poor is prevalent.17

Human rights in the New Urban Agenda 109 Minimum plot sizes in many developing countries are considerably larger than the size of plots regularly occupied in informal settlements and cost more than what many households can afford.18 Indeed, the lack of appropriate standards has been one of the leading causes of informality in sub-Saharan Africa, together with land distribution and markets. For instance, up to the 1970s, building regulations in Nairobi required that roofs be strong enough to sustain six inches of snow. These regulations were put in place by a British colonial administrator who exported his hometown’s laws and only replaced ‘Blackburn’ with ‘Nairobi’. Residents of Nairobi, a city with a tropical climate and no history of snow, were forced to comply with these regulations or else their buildings were considered informal.19 Consequently, the poor were disadvantaged as most of them could not afford to build their roofs with materials that could withstand six inches of snow. Their houses were, therefore, considered illegal and vulnerable to demolition. The situation can be summed up as follows: Standards in developing countries tend to serve more as a means of social satisfaction than as a means of reconciling the shelter needs of the population with the maintenance of a reasonable level of environmental quality. They are so unrealistic that they are deservedly ignored by the majority of people in their efforts to solve their own shelter needs.20 The regulatory burden also exhibits the exclusionary nature of urban planning law.21 These laws are often characterized by ambiguous processes with overlapping or contradicting procedures, which lead to higher discretion of public authorities, limited accountability and corruption, which can discourage an otherwise law-abiding citizen from adhering to the law.22 Unfortunately, noncompliance usually means that the affected persons are operating outside the law and hence cannot claim its protection if they face eviction or demolition of their structures.23 In Cameroon, for instance, a 1974 law required the acquisition of a land certifcate for the ownership of private land. However, the registration process was costly, complex and took more than seven years to complete. For these reasons, only a few people were able to apply for the certifcates. Fifteen years later, the government declared the certifcate to be the only proof of land ownership in Cameroon.24 Consequently, customary and other informal rights to land were extinguished, leaving the poor, indigenous peoples, migrants, internally displaced persons, women and children the most disadvantaged. Urban planning law has played a crucial role in the exclusion of informal workers by not recognising their spatial and infrastructural needs. In addition to failing to support the allocation of adequate land to low-income housing and facilitating the demolition of informal settlements, planning laws often do not allocate adequate public spaces for informal workers such as street vendors. This often results in the criminalization of economic activities in public spaces, as evidenced by the frequent harassment of street traders and destruction or confiscation of their property in many cities across the world. Zoning laws have also been applied arbitrarily without taking due consideration of their social and economic

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consequences. Single-use zoning that keeps residential and commercial areas apart does not recognize the vast majority of poor urban dwellers whose residences also act as income-generating areas.25 Such laws are in contravention of the right to earn a livelihood, as they criminalize economic activities typical of the poor and trap them in areas with low purchasing power when access to wealthier communities is what they need to make their businesses viable.26 The negative perception that authorities have of informality means that laws in many countries are designed for the formal economy, which can lead to ‘legal blindness’ to the needs of informal workers as well as deliberate repression of the informal economy when its interests compete with the formal one. This attitude has been exhibited by some local authorities using urban planning law to demolish informal structures – where a lot of informal enterprises conduct their businesses – after pressure from property developers seeking to maximize land values.27 Such moves result in destruction of property and violations to the right to adequate housing and the right to earn a livelihood, among other human rights. Ultimately, the unsuitability of planning law in developing countries to the contexts in which they operate and its catalysing effect on informality results in two probable outcomes, both of which have serious human rights implications. The first is that such standards are strictly enforced with the aim of rooting out all informality. The effect of this approach is widespread evictions in and demolitions of informal settlements, which are often seen as blights on the city. An obvious example of strict enforcement without regard to local circumstances was Zimbabwe’s ‘Operation Murambatsvina’ (literally ‘Operation Drive out Rubbish’) in 2005, where the Town and Country Planning Act allowed the government to evict more than 700,000 people.28 It was described as a programme to enforce bylaws to stop all forms of alleged illegal activities in areas such as vending, illegal structures and illegal cultivation among others in its cities. The second outcome is that the law is not consistently enforced, but those operating outside it live under the constant threat of arbitrary moves, extortion and harassment. Indeed, dubious land deals and corrupt arrangements have the space to flourish under these circumstances as political elites, private developers and commercial investors take advantage of grey legal spaces at the expense of the urban poor who continue to face poverty, marginalization and tenure insecurity.29

Reforming urban planning law for effectiveness, human rights and inclusivity ‘Back to basics’ approach – essential law The failure of planning law to accommodate the way of life of the majority of poor urban dwellers calls for a new way of doing things. UN-Habitat advocates for a ‘Back to Basics’ approach, called Essential Law. This approach entails looking at the current situation, identifying necessary standards of health and safety, developing practical and realistic responses that can be assessed against need, and

Human rights in the New Urban Agenda 111 realistically projecting impact. It discourages the belief in ‘urban fantasies’ – cities that exist in the imagination of lawmakers and planners but have very little relation to the reality of the countries’ urban dwellers.30 The relevant question here is what essential measures need to be put in place for urban spaces to be efficiently and inclusively used? It proposes not a comprehensive law that tries to address everything but one that focuses on the basic needs of the urban population (minimum standards of health, safety and environmental protection) with the possibility of scaling up to more complex interventions as capacity and resources increase. The Essential Law approach is consistent with the realities of urbanization in the Global South. It recognizes that most local governments in developing countries are weak and under-resourced, and that the informal urban population is already substantial. It is not interested in the preparation of ‘perfect’ master plans and the enactment of ambitious laws that have little hope of ever being implemented and does not seek to create the ‘ideal’ city. Instead, its main focus is on supporting the majority of the urban population to lead a decent and productive life, notwithstanding their frequent need to rely on informal strategies. This approach can be found within the NUA, which states that urban policies, in addition to being inclusive and participatory, must also be implementable.31 UN-Habitat’s proposal for legal reform has four main components. First, urban laws need to be appropriate to the local contexts in which they operate. Second, the compliance processes created by urban laws should be simple, expeditious and affordable for most urban dwellers. They should not discourage otherwise law-abiding residents from compliance due to the complexity and costs of the process, and they should be regularly monitored and assessed for their efficacy. Third, legal frameworks should be characterized by clear institutional and governmental structures with sufficient accountability and coordination between them. They ought to specify the roles of each institution to eliminate gaps and overlaps which often lead to confusion, arbitrary decision making and poor compliance. Fourth, the lawmaking process should include an adequate appraisal of the financial and human resources needed for its implementation. Such an assessment ensures that proposed laws set realistic targets and that it is actually possible to implement them.32 These elements are all reflected in the NUA. Paragraph 86 calls for implementable urban policies; Paragraph 87 provides for stronger coordination and cooperation among the various levels of governments through multilevel consultation mechanisms and by clearly defining the respective competences, tools and resources for each level; and Paragraph 88 focuses on coherence between the goals and measures of sectoral policies at different levels of administration.

Adopting human rights-based frameworks Human rights-based approaches have three distinguishing features, all of which appear prominently within the NUA. The first is the belief that all development policies and programmes should be formulated with the main objective being the

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fulfilment of human rights. Under Paragraph 12, one of the main objectives of the NUA is the achievement of urban areas where ‘all persons are able to enjoy equal rights and opportunities, as well as their fundamental freedoms’. It also pledges to ‘leave no one behind’ by, among other things, ‘ending poverty in all its forms and dimensions’; ‘ensuring equal rights and opportunities, socio-economic and cultural diversity, and integration in the urban space’; ‘enhancing liveability, education, food security and nutrition, health and well-being’; ‘promoting safety and eliminating discrimination and all forms of violence’; and ‘providing equal access for all to physical and social infrastructure and basic services, as well as adequate and affordable housing.’33 Second, a human rights-based approach identifies rights-holders and their entitlements and corresponding duty-bearers and their obligations, and works towards strengthening the capacities of rights-holders to make their claims and of duty-bearers to meet their obligations. The NUA repeatedly includes the term ‘for all’ indicating that every urban resident is a rights-holder. It goes further to identify specific groups that may require greater interventions. These include women, children and youth, the elderly, persons with disabilities, indigenous peoples and local communities, people living with HIV/AIDS, slum and informal-settlement dwellers, homeless people, workers, smallholder farmers and fishers, refugees, internally displaced persons and migrants.34 In the same vein, the NUA aims to strengthen the ability of both the right-holders to make claims (by putting an emphasis on public participation) and the capacity of duty-bearers to fulfil them. The latter is reflected in various paragraphs which recognize the link between capacity building and the fulfilment of human rights.35 For example, Paragraph 120 calls for capacity building of public water and sanitation utilities to promote the right to water and sanitation. The third attribute of human rights-based approaches is that principles and standards derived from international human rights treaties should guide all development policies. Again, this element is present in the NUA as it explicitly states that it is grounded in the Universal Declaration of Human Rights and other international human rights treaties.36 As the NUA is undoubtedly human rights-based, urban planning law should also be influenced by a human rights-based approach. It should seek to facilitate the enjoyment of human rights rather than hindering it. Human rights should be at the centre of every planning decision. Decisions should be evaluated by considering how they might impact international human rights standards. Such an approach would, for instance, refer to the Guiding Principles on Internal Displacement (Guiding Principles) when a planning decision has the potential to result in evictions and displacement of people.37 The Guiding Principles provide that forced evictions should be avoided and that, where no other option is available, the process should involve certain safeguards. These include preparation of an eviction impact assessment, be non-discriminatory in law and in practice, be defined in law, be foreseeable and be subject to consultation and participation of the affected people. There should also be effective recourse mechanisms for those that disagree with the eviction decision, compensation or resettlement that must

Human rights in the New Urban Agenda 113 be completed before the eviction and, most importantly, a prohibition on forced evictions that result in homelessness.38 Similarly, rights-holders that are likely to be affected by, and duty-bearers with an obligation related to, a given planning decision should be identified, and the nature and extent of likely impacts and obligations should be reasonably disaggregated by relevant major groups.

Innovative approaches to planning Many if not all problems in cities can be avoided or mitigated through foresight and planning; the securing of road grids in advance of development, the preparation of adequate urban lands for future urban populations using growth estimates and mechanisms that allow for progressive regularization or for the improvement of informal housing are all imperative. Current planning models in developing countries require a paradigm shift in the way urban space is allocated and utilized. Planning models that exclude the urban poor and criminalize important aspects of the way of life of the majority of the urban population are clearly inappropriate. A human rights-based requirement for plans would be for them to be designed with consideration of the needs of all social groups and that their drafts and outcomes should be assessed and monitored accordingly. Several innovative approaches have been developed, including strategic spatial planning, integrated development planning and land regularization and slum upgrading. These approaches are responsive to current challenges and opportunities within developing countries. Notably, they are also supported by the NUA, which calls for flexibility in plans ‘to adjust to changing social and economic conditions over time’.39 It also identifies slum upgrading and regularization as one of the ways of promoting access to sustainable and affordable housing40 and urges increased financial and human resources towards such programmes.41 Innovative planning approaches appreciate that a substantial number of people live and work informally. These approaches would legitimize their urban status and work with them to improve their standard of living. The most common moves include lowering planning standards to levels which the majority of the urban population can comply with – but without compromising basic health and safety standards. They may involve lower minimum plot sizes, setbacks and street widths; higher densities; and flexible building regulations. UN-Habitat advocates for most of these elements through the Five Principles of Sustainable Neighbourhood Planning, which encourage planning practices that promote adequate public spaces and streets, high density, mixed land use, limited land use specialization and social inclusivity. Innovative planning also involves inclusion of workers in the informal sector by recognizing their spatial and infrastructural needs. This is consistent with the NUA’s commitment to promoting businesses and enterprises operating in both the formal and informal economies.42 A good planning law is responsive to the needs of all urban dwellers, promotes access to income-earning opportunities and supports economic productivity. A relevant example is India’s Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act 2014, which

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recognizes street vending as a legitimate and legally protected form of business. It sets out the rights and obligations of street vendors, draws up a plan for street vending and establishes a Town Vending Committee to provide a forum through which street vendors can air their views and defend their interests. The Act has promoted the rights of vendors against discrimination, harassment, violence and destruction of their property.43

Enhancing public participation The most effective way of achieving urban inclusion is ensuring that all segments of the population are involved in the management of urban areas. Participation provides an opportunity to the public to express their views. Accordingly, meaningful participation promotes the interests of all, including the most vulnerable, and is ultimately helpful in facilitating the enjoyment of human rights.44 To empower citizens in the decision-making process, making them partners in the decisions influencing the formulation and implementation of policy, two components must be considered: capacity building and the participatory process itself. The NUA acknowledges public participation both as a right in itself as well as an enabler to the fulfilment of other rights. Paragraph 41 highlights the commitment to ‘promoting institutional, political, legal and financial mechanisms in urban areas to broaden inclusive platforms . . . that allow meaningful participation in decision-making, planning and follow-up processes for all, as well as enhanced civil engagement and co-provision and co-production’. The NUA further encourages effective participation and collaboration among all relevant stakeholders, including local governments, the private sector and civil society, women, organizations representing youth, as well as those representing persons with disabilities, indigenous peoples, professionals, academic institutions, trade unions, employers’ organizations, migrant associations and cultural associations, in order to identify opportunities for urban economic development and identify and address existing and emerging challenges.45 More specifc to planning, the NUA requires participatory approaches at all stages of the urban and territorial policy and planning processes (including conceptualization, design, budgeting, implementation, evaluation, and review).46 It also supports capacity-building measures that are aimed at improving public participation in urban and territorial development.47 Accordingly, urban laws must include mechanisms to ensure that the urban poor are not only heard, but also that their views are taken into consideration during decision-making. Involving them in the formulation of laws improves the quality of the legislation by incorporating multiple perspectives as well as increasing the likelihood of compliance. When people feel included, they tend to take more ownership of the law and more actively seek its enforcement, as it was made

Human rights in the New Urban Agenda 115 with their contribution. In the same vein, consultations among different stakeholders are critical in improving legislative content and enhancing legitimacy.48 One of the ways in which countries can entrench public participation in urban governance is to incorporate it into the constitution. Kenya offers an example of this practice. Article 10 of the 2010 Constitution lists public participation as one of the ‘national values and principles of governance’.49 This is reiterated in the Urban Areas and Cities Act 2011, where ‘institutionalised active participation by its residents in the management of its affairs’ is one of the principles of governance and management of urban areas.50 Indeed, the Second Schedule of the Act is titled ‘Rights of, and Participation by Residents in Affairs of their City or Urban Area’ and provides for the right of residents to ‘contribute to the decisionmaking processes of the city or urban area’. Similarly, strong provisions on public participation are found in the County Governments Act 2012.51 Consequently, Kenyan courts have declared legislation enacted without adequate public participation to be unconstitutional as follows: [P]ublic participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates . . . it behoves the County Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively . . . the County Assemblies ought to do whatever is reasonable to ensure that as many of their constituents in particular and the Kenyans in general are aware of the intention to pass legislation and . . . to exhort its constituents to participate in the process of the enactment of such legislation by making use of as may fora as possible such as churches, mosques, temples, public barazas[,] national and vernacular radio broadcasting stations and other avenues where the public are known to converge to disseminate information with respect to the intended action.52 However, despite the existence of laudable legal provisions, the absence of a framework for the achievement of public participation in governance presents a loophole whereby it merely becomes a formality, preventing the attainment of genuine and meaningful public participation.53 The Constitution is fairly recent, and institutionalization of public participation is yet to occur. Legal recognition should thus be seen as only the frst step in the inculcation of meaningful and inclusive participation in urban governance processes.

Conclusion The ineffectiveness of urban planning to regulate urban development in many countries in an inclusive and context-specific manner has serious human rights implications. With the current rapid urbanization of the Global South, where urban growth is taking place in a disorderly and unplanned manner, reforms of current planning laws are urgently needed. The NUA offers fresh perspectives on how human rights and inclusivity can be entrenched in urban areas through urban

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planning law. It puts human rights at the centre of its objectives and affirms that all urban residents are entitled to the full spectrum of rights contained in international human rights treaties. To this end, it calls for measures that promote urban inclusivity and prosperity for all through implementable urban policies, stronger coordination and cooperation among various levels of governments, innovative planning approaches that are suitable to informal settlers and enhanced public participation in urban governance.

Notes 1 G.A. Res. 71/256*, annex, New Urban Agenda (Dec. 23, 2016), ¶ 23 [hereinafter, New Urban Agenda]. 2 Id. ¶ 11. 3 Id. ¶ 12. 4 In the United States, ‘passive rights’ and ‘active rights’ are commonly known as ‘negative rights’ and ‘affirmative rights’, respectively. The term ‘negative’ is particularly preferred to ‘passive’ since the latter gives the impression that nothing needs to be done to implement these rights, whereas ‘negative’ suggests that people have the (active) right to be free from certain state action. 5 New Urban Agenda, supra note 1, ¶ 5. 6 Id. ¶ 25. 7 U.N. DEP’T OF ECON. & SOC. AFF., WORLD URBANIZATION PROSPECTS: THE 2018 REVISION. 8 U.N. DEP’T. OF ECON. & SOC. AFF., REALIZATION OF THE SUSTAINABLE DEVELOPMENT GOALS BY, FOR AND WITH PERSONS WITH DISABILITIES: FLAGSHIP REPORT ON DISABILITY AND DEVELOPMENT (2018). 9 UN-Habitat, Planning Sustainable Cities: Global Report on Human Settlements 2009, U.N. Doc. 1192/09E. 10 Id. at 51. 11 Vanessa Watson, Changing Planning Law in Africa: An Introduction to the Issue, 22 URB. F. 203, 204 (2011). 12 Matthew D. Glasser, Land Use Law and the City: Toward Inclusive Planning, 5 WORLD BANK LEGAL REVIEW 351, 354 (2013). 13 Town and Country Planning Act 1947, 10 & 11 Geo. VI c. 51. 14 UN-Habitat, supra note 9, at 58. 15 Local Government (Adoptive By-Laws) (Building) Order 1968, § 33 (Kenya). 16 Physical Planning (Building and Development) (Control) Rules (1996), § 18 (Kenya). 17 Nick Devas, Does city governance matter for the urban poor?, 6(4) INT’L PLAN. STUD. 393 (2001). 18 Ermina Maricato, Fighting for Just Cities in Capitalism’s Periphery (Bruno G. Lobo & Karina Leitao, trans.), in SEARCHING FOR THE JUST CITY: DEBATES IN URBAN THEORY AND PRACTICE 194 (Peter Marcuse, et al. eds., 2009). 19 Elijah Agevi, Building Standards and Planning Regulations – The Kenyan Experience, 3 J. NETWORK AFR. COUNTRIES ON LOC. BUILDING MATERIALS AND TECH (1995). 20 AKIN L. MABOGUNJE, THE DEVELOPMENT PROCESS: A SPATIAL PERSPECTIVE (1980), quoted in Agevi, ibid. 21 Regulatory burden refers to the administrative cost of a regulation in terms of money, time and complexity. 22 Maria Mousmouti & Gianluca Crispi, “Good” Legislation as a Means of Ensuring Voice, Accountability, and the Delivery of Results in Urban Development, 6 WORLD BANK LEGAL REV. 257–69, 263 (2015).

Human rights in the New Urban Agenda 117 23 Glasser, supra note 12, at 354. 24 UN-Habitat, supra note 9, at 55. 25 Barbara Lipman & Robin Rajack, Memo to the Mayor: Improving Access to Urban Land for All Residents: Fulfilling the Promise, Urban Development Series 1, 3 (2011), http://siteresources.worldbank.org/INTURBANDEVELOPMENT/ Resources/memo_to_mayor_WEB.pdf. 26 UN-Habitat, supra note 9, at 59. 27 UN-Habitat, Enhancing Productivity in the Urban Informal Economy, U.N. Doc. HS/063/16E, at 18 (2016). 28 Stephen Berrisford & Michael Kihato, The Role of Planning Law in Evictions in Sub-Saharan Africa, 37 S. AFR. REV. SOC. 20–34 (2006). 29 Stephen Berrisford, Unravelling Apartheid Spatial Planning Legislation in South Africa: A Case Study, 22 URB. F. 247–63 (2011). 30 Vanessa Watson, African Urban Fantasies: Dreams or Nightmares?, 26(1) ENV’T. & URB. 215, 215 (2013). 31 New Urban Agenda, supra note 1, ¶ 86. 32 UN-Habitat, Planning Law Assessment Framework, U.N. Doc. HS/049/18E, at 12 (2018). 33 New Urban Agenda, supra note 1, ¶ 14(a). 34 See id. ¶¶ 5, 13, 20, 34, 57, 113, 148, 155, 156. 35 See id. ¶¶ 81, 89, 90, 147, 148, 151, 159. 36 See id. ¶ 12. 37 Francis M. Deng (Representative of the Secretary-General), Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2 (Feb. 11, 1998). 38 Miloon Kothari (Special Rapporteur on adequate housing as a component of the right to an adequate standard of living), Basic Principles and Guidelines on Development-based Evictions and Displacement, A/HRC/4/18, annex I (Feb. 5, 2007). 39 New Urban Agenda, supra note 1, ¶ 94. 40 Id. ¶ 107. 41 Id. ¶ 109. 42 Id. ¶ 58. 43 See UN-Habitat, supra note 27, at 10. 44 J.C. Ashukem, Public Participation in Environmental Decision-Making in Cameroon – Myth or Reality, NOMOS VERLAGSGESELLSCHAFT 358 (2019). 45 New Urban Agenda, supra note 1, ¶ 48. 46 Id. ¶ 92. 47 Id. ¶¶ 148, 155. 48 MARC GRAMBERGER, ORG. ECON. COOPERATION AND DEV., CITIZENS AS PARTNERS: OECD HANDBOOK ON INFORMATION, CONSULTATION, AND PUBLIC PARTICIPATION IN POLICY-MAKING 21–22 (2001). 49 CONSTITUTION art. 10 (2010) (Kenya). 50 Urban Areas and Cities Act (2011) § 11 (Kenya). 51 See, e.g., County Governments Act (2012) §§ 87, 88, 89, 105 (Kenya). 52 Robert N. Gakuru v. Governor of Kiambu County (2014) K.L.R ¶ 75 (Petition No. 532 of 2013 consolidated with Petition Nos. 12, 36, 72 of 2014, and Jud. Rev. Misc. App. No. 61 of 2014). 53 Office of the Attorney General & the Department of Justice, Kenya Draft Policy on Public Participation (2018).

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Does the New Urban Agenda provide a stable legal framework for property rights and land use law? Marta Lora-Tamayo Vallvé

Introduction We live in a time of the internationalization of urban law.1 Urbanism, and especially urban law, has traditionally been treated as a local discipline (or multidiscipline). The approval of the New Urban Agenda (NUA) in Quito, Ecuador, in 2016 has spurred incorporation in the international agendas of issues that have traditionally been resolved and addressed from a local, regional, or national perspective. The Sustainable Development Goals (SDGs) add key indicators for international law homogenization. Does the NUA, despite not being an international treaty, offer instruments and a vision or mission that facilitates urban planning, carrying the seeds of a muchneeded urban change paradigm? Is the NUA useful as a legitimizing umbrella and propitiator for transforming the urban environment? Do we expect too much from the NUA? To know if we are expecting too much of this document – so often named and cited, but so rarely read in its entirety – it is necessary to know what we are looking for. That may seem obvious, but it is not, as we will see in the following discussion. From a legal perspective, the NUA may prioritize seeking answers to classic questions that public intervention and regulation of space and land (built and not built) have generated.2 But what questions and answers have traditionally been used to define legal and public intervention (regulation) on urban land uses? It is necessary to take a holistic approach to understand the NUA for precisely those questions – and their answers, if any. The NUA provides a wide variety of arguments and principles for different stable legal frameworks related to planning and land use law, but it does not offer a clear structure about the way property rights are linked and interrelated. This chapter is thus one of systematic deduction, recognizing that the text of the NUA is difficult to synthesize. To determine if the NUA offers a legal framework that will mold, inspire, orient, or even pressure national and local legal systems, this chapter analyzes the NUA, based upon the key legal elements that have traditionally shaped land use law. These elements include property rights, the right to urbanize, and the right to the city – rights and duties that are interrelated, interconnected, and interdependent.

Property rights and land use law 119 My analysis will try to extract from the NUA’s disordered paragraphs how these rights and duties are shaped and orientated, though our approach will reveal an unfinished delimitation wide enough to apprehend many different systems under the same NUA framework.

Applying a concentric-circle-theory analysis to the NUA To carry out the analysis in levels or layers of rights and duties, we will use as a starting point the preamble of the Spanish law of land use regime and valuations. Under Spanish law 8/2007 of May 2015, rights and duties in the urbanization process can be described as a figure comprised of three concentric circles (see Figure 8.1 for details). The preamble “Ley 8/2007, de 28 de mayo de suelo” (Ley 8/2007 de suelo)3 summarizes these circles as first, the right to the city; second, the right to develop/urbanization rights; and third, property rights. The coherent layered analysis of these three concentric circles embodies legal connections to an urban reality and serves as the conceptual basis for this chapter.4 As such, it is worth reproducing the approach at length: For both conceptual and jurisdictional reasons, the first specific matter dealt with by the Law is the statute of rights and duties affected by individuals, to whom it devotes, and which directly or indirectly inspire all the rest of the articles. For this purpose, three basic subjective statutes are defined and perceived as three concentric circles: First, that of citizenship in general in relation to land and housing, which includes rights and duties of socio-economic and environmental order of every person regardless of what their activity or heritage is, that is, in the understanding of citizenship as a statute of the person who ensures their enjoyment in freedom of the environment in which they live, their participation in the organization and their equal access to endowments, services and collective/public spaces that demand quality and cohesion among them. Second, the regime of private initiative for urban development, which, in the terms in which it is configured by the urban legislation within the framework of this Law, is an economic activity of general interest that affects both the right of property and the commerce freedom. Urbanization is a public service whose management can be reserved by the Public Administration or entrusted to private parties. It usually affects a plurality of properties, so it exceeds both logically and physically the limits of property. Then, where its execution is entrusted to the private initiative, it must be able to be open to the competence of third parties, which is desirable in the agility and efficiency of the action. Third, the status of land ownership, defined—as it is traditional among us—as a combination of faculties and duties, among which the urbanization is no longer counted for the reasons stated in the previous

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The three concentric circles described by Ley 8/2007 de suelo provide a starting point to analyze both the need for interrelation and interconnection of each of the circles and the way the NUA references them. From this scheme, we will try to answer the question: how does the NUA solve the relationship among property rights, the right to urbanize, and the right to the city?

Analyses of the meanings and models for property rights and urban development rights The visions of the first and second concentric circles are closely related. A historical and comparative study of liberal or progressive conceptions of property rights, their relation to the urban process, and their implementation show and dismantle myths sustained in time and in the collective imagination.6 In recent decades, there have been two opposite movements with respect to property rights. On the one hand, there are rights born from the need to generate or regenerate an individual consciousness, such as the American “Not In My Backyard” (NIMBY) movement, which highlights the downsides of public intervention to control or limit property rights. On the other hand, since the beginning of the twentieth century, there has been a contrasting doctrine of the social function of property and its statutory conception.7 Under this doctrine, property rights are a social construction, not a natural right, and any legislative or normative power may delimit the content of the right. The need to collectively increase and reposition property duties conditioned and delimited by property’s social function, however, in some cases empties these duties of economic content in pursuit of a supposed collectivization of a property right submitted ad infinitum to regulations and administrative changes.8 The legal-constitutional anchoring of this kind of collective intervention usually starts from two principles that are found in the third concentric circle: the right to housing and the right to the environment. These are among the rights that in recent Latin American constitutions have been incorporated into the social function of property and land. Article 58 of the Colombian Constitution states: Private property and other rights acquired in accordance with civil laws are guaranteed, they cannot be unknown or violated by subsequent laws. In the application of a law issued for reasons of public utility or social interest, in conflict with rights of individuals, private interest must yield to the public or social interest. The property is a social function that implies obligations, such as ecological function. The State will protect and promote associative and solidary forms of property. For reasons of public utility or social interest defined by the legislator, there may be expropriation through a court ruling and prior compensation. This will be fixed consulting the interests of the

Property rights and land use law 121 community and the affected individuals. In cases determined by the legislator, said expropriation may be advanced by administrative means, subject to subsequent contentious-administrative action, including with respect to the price.9 The Ecuadorian Constitution, likewise, establishes the so-called regime of “Buen Vivir” or “Sumak Kawsay,” which implies a general recognition of the right to environment. Article 14 states: “It is the right of the population to live in an environment recognized as healthy and ecologically balanced, which guarantees sustainability and good living, sumak kawsay.”10 Sumak Kawsay also is related to housing rights. The wording of Articles 30 and 31 are novel in constitutional terms, in that they recognize both a right to housing and a right to the city. As Article 30 states, “People have the right to a safe and healthy habitat, and to adequate and dignifed housing, regardless of their social and economic situation.”11 And Article 31 states that “People have the right to the full enjoyment of the city and its public spaces, under the principles of sustainability, social justice, respect for different urban cultures and balance between what is urban and rural.”12 The exercise of the right to the city is based on democratic management, with respect to the social and environmental function of property and the city, and the full exercise of citizenship. This perennial tension shows pathologies on both sides of the Atlantic, both in jurisdictional terms and in measures and regulations that are more or less progressive in one direction or another. The debate in the United States is located primarily in the jurisprudence around regulatory takings.13 In Europe, the jurisdictional debate surrounding property and urban development rights is often focused on valuation of land for the purpose of expropriation.14 In Spanish Supreme Court decisions, economic and legal tensions have focused on whether to count the surplus value generated by a plan, and not generated by the developer, in eminent domain and expropriation cases. This seemingly economic discussion hides a deeper ideological conception of property rights. If the surplus value of a plan is accounted for when land is expropriated before the execution of the plan, then the right to develop or urbanize, applying the second concentric circle, essentially belongs to the landowner. This right would thus be moved to the first concentric circle, as a property right. If we do not consider this value as part of the expropriation indemnity, then the right to urbanize does not belong to the landowner merely as a product of landownership. It belongs to the landowner only in the event that landownership turns into development. In France, similarly, discussion revolves around the moment when indemnity has to be arranged. Landowners try to fix the point of compensation after the passing of a local plan, while public administrators try to delay formal adoption of the plan as much as possible in order to avoid the augmentation of land value. In this sense, planning and public policy scholar Donald Krueckeberg understood that the problem of land use is its presumption of neutrality and its appearance of objectivity, since in principle and operationally, land use would be what planners determine and what administrators regulate.15

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What property do we have to regulate or plan? What is the limit between public intervention and private property? The question then is no longer so technical, but it is rooted in the very conception and evolution of property rights in legal order. The starting point in the study of urbanism had therefore been initially wrong for Krueckeberg, at least insofar as it failed to provoke a conceptual and methodological distortion in time. American urban planning begins with an implicit assumption or a false myth based on ideological interpretations of what is private and public and to whom it belongs. The answer to that question seems more or less clear, but in reality it is not. American culture misunderstands the scope and measure of public intervention over property rights. The error in this logic, however, lies in the presumption that the difference between the limit and concept of police power and private property rights is known.16 Further, the reach of property rights is presumed, not questioned, yielding conclusions about property rights and distributive justice that most of the world assumes without discussion.17 Our main aim should be refocusing the parameters of the global debate surrounding property rights. Discussions of property rights, their conception, and limits will become more productive for urban development if, instead of fighting against privilege and a special regime of public administration that, for example, allows expropriated land to be given to a third party, we orient the debate towards what should be the common interest.18 When analyzing the third concentric circle, that of the right to the city, we will see if the NUA’s legal statements, as well as the role of regulation in the jurisprudence of property and the right to urbanize, create the new paradigms necessary to face the challenges of a twenty-first-century city. Through application of the three concentric circles, we can determine if the NUA designs urban development processes and plants the seeds of certain legal frameworks that will help states generate dynamic urban models in terms of urban rights and duties. The exorbitant powers of public administrators, regardless of the legal systems in which they operate, are being foundationally reconsidered based on a necessary, exhaustive, and demonstrated justification of what is of public interest or general interest that does not empty economic and legal content of the rights of individuals; in our case, of landowners. This reconsideration keeps alive and present, in an effective manner, a conception of urbanism as an authentic public function. Moving into the new urban models and legislations which, from an operational perspective, have reincorporated environmental policy as integral, the common interest must be protected as a priority. The assumption of this goal has also led to a certain constraint of traditional economic rights that follow property rights in many cases. What is certain is that, regardless of the effectiveness of environmental planning regulations and scientism, the technical debate referred to by urban policy scholar Harvey Jacobs has been renewed in the field of urban planning and spatial planning through environmental concerns. Over the last thirty years, ecological

Property rights and land use law 123 awareness has led to a new orientation, with a green focus on the balance between the public and the private, and that has taken the form of a legal concept. Is this legal concept indeterminate? In legislative implementation of sustainable urban development, the debate will remain: whether there exists an original and primordial right to use individual property independently of the intergenerational tensions and the reasonable balance between individual decisions and the common good. Jacobs, in his essay The Taking of Europe: Globalizing the American Ideal of Private Property?, raises crucial questions regarding the need for a new discussion on the limits of property rights and the limits of public intervention on these rights.19 Jacobs raises these concerns not only from a theoretical, technicalscientific point of view, but also for the very survival of the European and North American economic model. Indeed, critical scholars have argued that liberalism is not adapted to broad social policies such as those related to the environment or urban issues because liberalism makes property, and not people, the center.20 Milder versions of liberalism have emerged over time, including progressive interpretations of influential jurists such as Gregory Alexander and Joseph Singer. These progressive or more ethical versions of property recognize the need for a balanced regime of property rights, given our socio-cultural, economic, and global realities. In this regard, it is important also to assess property rights in relation to political objectives. What contributions should the NUA make to this open and still unresolved debate?

How the NUA addresses property rights conflicts From a legal perspective, and also from the viewpoint of those accustomed to managing precise urban planning legislation, reading and studying the NUA becomes a labyrinthine task and requires an attempt – perhaps overly forced and sometimes unsuccessful – to redirect and structure sequentially heterogeneous and disordered paragraphs. Starting from the first concentric circle, ownership as a property right and its intimate relation with the right to urbanize, the NUA in an early manner establishes a “shared vision.”21 Paragraph 13 of the NUA states: We envisage cities and human settlements that: (a) Fulfil their social function, including the social and ecological function of land, with a view to progressively achieving the full realization of the right to adequate housing as a component of the right to an adequate standard of living, without discrimination, universal access to safe and affordable drinking water and sanitation, as well as equal access for all to public goods and quality services in areas such as food security and nutrition, health, education, infrastructure, mobility and transportation, energy, air quality and livelihoods.22 In a sense, this suggests that the NUA perpetuates, consolidates, and dignifes, internationally and jointly, the social function of land and city, though it does not expressly refer at frst to ownership.

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This paragraph offers great juridical scope and density, conceiving in the first place of urbanization and the city as a whole composed of public and private goods. It consequently adds the complexity of the private space and exclusive use and enjoyment that arises from the right to adequate housing. The paragraph also connects the right to dignity with access and enjoyment of minimum conditions of habitability, and an “adequate standard of living without discrimination.”23 The NUA, therefore, addresses rights that in legal systems are contemplated, protected, and regulated in different levels. Paragraph 11 aims to show that visions for cities can be adopted via multiple levels of governance, through “legislation, political declarations, and charters.”24 Sections b and c of Paragraph 13, which refer to public participation and gender equality, could be framed in the first concentric circle, the right to the city achieved by public policies. However, sections a and e of Paragraph 13 contain concrete legal mandates of enormous potential, as noted earlier. Furthermore, Paragraph 13(e) articulates a vision for cities that “[f]ulfil their territorial functions across administrative boundaries and act as hubs and drivers for balanced, sustainable and integrated urban and territorial development at all levels.25 The NUA introduces a strong relationship among property rights, the use of land, and the direction for governments to responsibly lead with legal and planning tools, and it is taking a step forward with respect to land use regulations, in terms of integrating an ecological dimension. While some Latin American constitutions, such as those of Colombia and Ecuador, have incorporated subjugation of property to social and ecological functions, other continental models have not, at least at a constitutional level for the time being. Nevertheless, this consciousness of the social and ecological function of land is revealed by the NUA in scattered paragraphs, without a clear systematization that could provide the international order with any parameters, standards, or indicators specifying the dimensions or scope of its macro-vision. The critique, then, is centered on a lack of substantive content, absence of order, and consequent dispersion. The social and ecological function of land results in an ecosystemic embodiment that must frame public policies and urban planning. This dual recognition is carried out in different and spare paragraphs of the NUA, and a more complete scope with respect to the social and ecological function of land is necessary. Paragraph 69 establishes: We commit ourselves to preserving and promoting the ecological and social function of land, including coastal areas that support cities and human settlements, and to fostering ecosystem-based solutions to ensure sustainable consumption and production patterns, so that the ecosystem’s regenerative capacity is not exceeded.26 Paragraph 65 states, “We commit ourselves to facilitating the sustainable management of natural resources in cities and human settlements in a manner that protects and improves the urban ecosystem and environmental services.”27 This

Property rights and land use law 125 paragraph inserts an important concept for legal frameworks – the necessity of environmental equilibrium in urban ecosystems. This central ecosystemic vision connects with urban planning in Paragraph 72 in order to understand the need to address urban planning in an integral way considering the rural-urban as a continuum. More specifically, in Paragraphs 94 to 98, the NUA firmly bets for a polycentric, integrated, and balanced territorial model.28 Paragraph 95 signals that synergies between rural and urban areas will be promoted and given priority.29 Paragraph 97 is dedicated to the promotion of planning that regenerates, redevelops, and struggles against dispersion or urban sprawl.30 The NUA makes a brave bet, configuring an inspiring model of a compact and efficient city.

The social function of property While the NUA starts from the social and ecological land function, it does not legally link the social function objective to property rights and ownership in a direct and clear way. The NUA does not refer to property rights until Paragraph 35, in which it commits to promoting “security of tenure for all,” a clear reference to the legal formalization of informal settlements.31 The other indirect way the NUA references property rights is by recognition of the “plurality of tenure” and the protection of the weakest sectors within “the continuum of land and property rights.”32 The first time that the NUA expressly refers to ownership is contradictory, to recognize other forms of tenure that are not property rights. It is not until Paragraph 53 where we have another express reference to ownership, linking the institution with urbanization, understood as the ability to “urbanize to incorporate endowments as a generator of economic value for the property of the land.”33 The reference is reiterative, and the conceptual approach is indirect, since it starts from the development of public spaces as engines of economic development or added property value. On the other hand, the NUA also presents a defense of property centered in housing rights as an economic launching pad for human development. Paragraph 46 states: We commit ourselves to promoting the role of affordable and sustainable housing and housing finance, including social habitat production, in economic development, and the contribution of the sector to stimulating productivity in other economic sectors, recognizing that housing enhances capital formation, income, employment generation and savings and can contribute to driving sustainable and inclusive economic transformation at the national, subnational and local levels.34

Urban development rights and control through urban planning Paragraph 14(b) emphasizes promotion of “sustainable and inclusive urban economies by leveraging the agglomeration benefits of well planned urbanization . . .

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preventing land speculation, promoting secure land tenure and managing urban shrinking, where appropriate.”35 The necessary linkage between urban development and the existence of a territorial order is translated generically into “territorial planning,” referenced in Paragraph 15(c)(iii).36 This affirmation carries a deep meaning, assigning not only a functioning physical order but also an economic order since its mission will be the optimization of the so-called “positive outcomes of urbanization.”37 The effective implementation of these urban planning principles appears in a clearer manner in Paragraph 98, from which the basic principles of integral urban planning are derived – for example, equity, efficiency, and sustainability are translated into a precise and polycentric urban form.38 This paragraph could perhaps have preceded the points in Paragraphs 85 to 92 related to construction of a regulatory supportive framework and planning and managing urban spatial development.39 The overall vision of Paragraph 98 would have been a good framework to define and sustain the basic principles of integral urban planning, and could have focused as well on the initiative, development, and implementation of urbanization processes.40 In the second concentric circle, it is necessary to describe the purposes the NUA provides in a diffused way for implementation and regulation, and provide which groups each initiative corresponds to, delineating who shall be responsible for development. References to initiatives such as the right to urbanize, the right to create or generate a city ex novo, and urbanization or development rights are only introduced in Paragraphs 131 and 132, appealing to internal and external economic resources to generate value in the city.41 These principles are used as starting points to establish good governance and transparency in urban accounting, and to encourage governments to mobilize all kinds of resources. However, this conceptualization of a right to urbanize is too forced. The NUA does not expressly support a right to urbanize. Rather, it supports and promotes the economic benefits of urbanization. It is unclear whether this is a right outside of the public sector, for which it is an obligation. In Paragraph 137, the NUA appears to support limitations to the private appropriation of the benefits of urbanization: We will promote best practices to capture and share the increase in land and property value generated as a result of urban development processes, infrastructure projects and public investments. Measures such as gains-related fiscal policies could be put in place, as appropriate, to prevent its solely private capture, as well as land and real estate speculation.42

Right to the city and citizens’ rights This chapter approaches the right to the city in an inclusive way, as a series of physical features, implicitly introducing the elements of the second concentric

Property rights and land use law 127 circle, the right to urbanize, by establishing the principle of non-discrimination in the creation of cities. For example, Paragraph 12 of the NUA states: We aim to achieve cities and human settlements where all persons are able to enjoy equal rights and opportunities, as well as their fundamental freedoms, guided by the purposes and principles of the Charter of the United Nations, including full respect for international law.43 This paragraph links the ideal of a city for all to the ideal of the city as a place where people can enjoy equal rights and opportunities. In the third concentric circle, we could include a series of rights and duties linked from the physical and legal relationship of the human race with the city as a place to complete inner cultural desires and aspirations under the broad umbrella of the right to the city. It is here that the NUA should affirm, with the force that the Universal Declaration of Human Rights gives, basic principles for urban planning policy as other charters, such as the Global Charter-Agenda for Human Rights in the City, do in a more harmonic way.44 Although the NUA has the same principles in mind, it outlines them in a dispersed way. The NUA should have developed the concept of citizenship – persons as inhabitants of the city – as the Global Charter-Agenda for Human Rights in the City does. Although Paragraph 38 addresses cultural heritage and the need to strengthen social participation and the exercise of citizenship, this concept is not introduced in a full legal or political sense.45 The NUA certainly affects the anthropocentrism of public policies focused on the city from the beginning, and the humanization of cities and settlements, but its implementation remains in a constructive plane in the dimension of housing, not urbanization as an individual right. For example, Paragraphs 26 and 28 underline the necessity of people-centred policies, but do not provide means for implementation as a right.46

Conclusion The NUA reflects the content of the so-called right to the city, though the NUA defends this right in a disorderly manner and without an express and inherent assumption of it. Nevertheless, the NUA is full of the spirit of the right to the city, even if it is not the best document in defending this right. The right to urbanize is not fully contemplated or defined in the NUA, though it does propose measures to avoid speculation and appropriation of value by the private sector. Rather, the NUA integrates a public sector duty to urbanize, as indicated in Paragraph 45 through commitment to develop “inclusive urban economies . . . fostering an enabling environment for businesses and innovation, as well as livelihoods.”47 However, defense of the economic benefits of urbanization requires a certain right for private initiative, which is a missed opportunity

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right to the city P.11 Citizenship / Public Participation / Gender

development rights, right to urbanize

P.13 Social and ecological function of land & adequate housing P.69 Ecological and social function of land

(citizenship rights)

P.12 Nondiscrimination in the creation of cities P.14 Sustainable urban economies P.98 Equity Efficiency

P.65 Sustainable management of natural resources P.90 Ecosystemic vision

P.15 Positive outcomes of urbanization

property rights

P.90–95 Polycentric vision of territory

P.92–95 Planning P.137 Promote value-capture practices

P.35 Secure tenure P.46 Housing P.53 Economic Value

Figure 8.1 Diagram of the New Urban Agenda analyzed within the concentric circle theory48

that the NUA could have addressed by examining the challenges of public-private equilibrium in urbanization. In conclusion, in a veiled way, the NUA supports property, especially housing, and grants the right to benefit from urbanization. Nevertheless, property rights, and the social and ecological function of property rights are assumed vaguely, not explicitly. Finding the balance of urban legal and economic frameworks requires research of public and private priorities and the different levels or layers of action. The concentric circle analysis that we offer and the way that rights and duties are incorporated in the NUA may help to clarify the wildforest of NUA dispositions and paragraphs.

Notes 1 See GLOBAL PERSPECTIVES IN URBAN LAW: THE LEGAL POWER OF CITIES (Nestor M. Davidson & Geeta Tewari eds., 2018). 2 Donald A. Krueckeberg, The Difficult Character of Property: To Whom Do Things Belong?, 61 J. OF THE AM. PLANNERS ASS’N NO. 3 (1995). 3 Ley 8/2007, de 28 de mayo, de suelo (B.O.E. 2007, 128) (Spain) at 23266–84. 4 See RAMÓN PARADA & MARTA LORA-TAMAYO VALLVÉ, DERECHO ADMINISTRATIVO III. BIENES PÚBLICOS Y DERECHO URBANÍSTICO (2017). 5 See Ley, supra note 3. 6 Colin Crawford, The Social Function of Property and the Human Capacity to Flourish, 80 FORDHAM L. REV. 1089 (2011).

Property rights and land use law 129 7 GREGORY S. ALEXANDER & HANOCH DAGAN, Property and Citizenship, in PROPERTIES OF PROPERTY 71 (2012). 8 See DAVID HARVEY, REBEL CITIES: FROM THE RIGHT TO THE CITY TO THE URBAN REVOLUTION (2nd ed. 2013). 9 LEGIS, CÓDIGO BÁSICO CONSTITUCIÓN POLÍTICA DE COLOMBIA (41st ed. 2019-I). 10 CONSTITUCIÓN DE LA REPÚBLICA DEL ECUADOR 2008 OCT. 20, 2008, § 2, art. 14. 11 Id. at § 6, art. 30. 12 Id. at § 6, art. 31; see also Krueckeberg, supra note 2. 13 Harvey M. Jacobs, The “Taking” of Europe: Globalizing the American Ideal of Private Property? (Lincoln Inst. of Land Policy, Working Paper No. WP06HJ1, 2007). 14 See MARTA LORA-TAMAYO VALLVÉ. THE EUROPEANISATION OF PLANNING LAW: THE EUROPEAN—LAND USE—SILENT REVOLUTION 165 (2017). 15 See STÉPHANIE PAVAGEAU, LE DROIT DE PROPRIÉTÉ DANS LES JURISPRUDENCES SUPRÊMES FRANÇAISES, EUROPÉENNES ET INTERNATIONALES 206 (2006). 16 These same questions were made by Ildefonso Cerdá in 1857 when the extension plan of Barcelona was passed. However, if the analysis of the main legal and economic tension is a first way of understanding urbanism, fundamental for its precise accurate apprehension, then it is clear that other elements are necessary to approximate urban planning as an integrated and coherent whole. See MARTA LORA-TAMAYO VALLVÉ, HISTORIA DE LA LEGISLACIÓN URBANÍSTICA 16 (2007). 17 Krueckeberg, supra note 2. 18 Jacobs, supra note 13. 19 Id. 20 Ezra Rosser, The Ambition and Transformative Potential of Progressive Property, 101 CALIF. L. REV. 107 (2013). 21 G.A. Res. 71/256*, annex, New Urban Agenda (Dec. 23, 2016), [hereinafter, New Urban Agenda]. 22 Id. ¶ 13. 23 Id. 24 Id. ¶ 11. 25 Id. ¶ 13(a)-(c). 26 Id. ¶ 69. 27 Id. ¶ 65. 28 Id. ¶¶ 94–98. 29 Id. ¶ 95. 30 Id. ¶ 97. 31 Id. ¶ 35. 32 Id. ¶ 35. 33 Id. ¶ 53. 34 Id. ¶ 46. 35 Id. ¶ 14(b). 36 Id. ¶ 15(c)(iii). 37 Id. ¶ 14(b). The statement legitimizes measures that provide value capture of land and economic uses for social destinies. 38 Id. ¶ 98. 39 Id. ¶¶ 85–92. 40 Id. ¶ 98. 41 Id. ¶¶ 131–32. 42 Id. ¶ 137. 43 Id. ¶ 12. 44 United Cities and Local Governments (UCLG), Global Charter-Agenda for Human Rights in the City (Dec. 11, 2011).

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New Urban Agenda, supra note 21, ¶ 38. Id. ¶ 26. Id. ¶ 45. This diagram describes the relationship of the three concentric circles within the concentric circle theory. It signifies rights and obligations towards the urban process in relation to the NUA. Within each circle, the paragraphs of the NUA from which legal frameworks could be sustained within that circle are indicated. The three circles are interrelated, interconnected, and interdependent.

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Shifting paradigms from between the lines? Legal internalizations of the right to adequate housing in South Africa Marius Pieterse

Introduction Consensus-based documents seldom employ forceful or prescriptive language. For all the normative weight of its principles and commitments, the New Urban Agenda (NUA) certainly exemplifies this. Intended as a ‘key instrument for enabling national, subnational and local governments and all relevant stakeholders to achieve sustainable urban development’1 in pursuit of Sustainable Development Goal (SDG) 11’s goal of inclusive, safe, resilient and sustainable cities and human settlements,2 the NUA is unbinding in nature and lacks a formal implementation framework. It appears to take for granted that its many norms will be domestically internalized through the various indirect, diplomatic, procedural and persuasive channels that operate with increasing effectiveness in a globalized world.3 Indeed, the NUA is somewhat ambiguous in its relationship with binding law. While advocating for the adoption of various ‘policies’, ‘tools’, ‘mechanisms’ and ‘approaches’ that seek to achieve its vision, it is (curiously) only on the issue of motorcycle safety where it explicitly envisages these to include legislation.4 The NUA not only appears to assume that states have appropriate and adequate legal frameworks in place to give effect to its aspirations, but is also self-consciously deferent to these, affirming explicitly that its implementation should be respectful of ‘national legislation and practices, as well as policies and priorities’.5 A further notable feature of the NUA is its tendency to shy away from rights language. The only, albeit strong, exception is the right to adequate housing, which the NUA on more than one occasion explicitly and unambiguously affirms as an essential component of the right to an adequate standard of living,6 and on which it substantively embroiders throughout. Its progressive and multi-layered understanding of this right as requiring policies at all levels of government that ‘incorporate the provision of adequate, affordable, accessible, resource-efficient, safe, resilient, well-connected and well-located housing, with special attention to the proximity factor and the strengthening of the spatial relationship with the rest of the urban fabric and the surrounding functional areas’,7 alongside policies promoting, for instance, security of tenure, urban mobility, varied housing supply and meaningful access to essential urban services,8 is arguably one of the NUA’s greatest strengths.

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Relatedly, the NUA appears to be cautiously embracing a concept of the right to housing that recognizes people’s own habitat-producing practices,9 thereby representing a subtle shift towards acceptance of the reality of informal settlements across the developing world. While continuing to betray discomfort with the existence of ‘slums’ and in places echoing the preoccupation in earlier U.N. normative instruments with their prevention and reduction, the NUA seems more concerned with improving living conditions in informal settlements, not least through their ‘in situ’ upgrading and their integration into the urban fabric.10 Yet the deference to national legislative frameworks is reiterated precisely in this context,11 signaling that the content of the right to housing for those needing it most remains dependent on the visions of national legislators. In similar strongly suggestive yet non-prescriptive fashion, the NUA embodies a preoccupation with strengthening and capacitating (urban) local government as a primary implementing agent of its commitments, also in relation to the right to adequate housing. Speaking of a ‘paradigm shift’ in relation to how cities are planned, financed, developed, governed and managed,12 the NUA is careful to affirm the ‘leading role of national governments’,13 whilst consistently emphasizing that subnational and local governments have an equally important role to play in realizing its objectives. This is supplemented by calls for urban governance and intergovernmental relations to be strengthened, for cooperative governance and clearer delineation of functional competencies at all levels of government and for ‘appropriate fiscal, political and administrative decentralization based on the principle of subsidiarity’ as a mechanism to unlock the effective implementation of national urban policies.14 While its clear aspiration for urban local governments to be capacitated, resourced and (legally) empowered arguably presents a watershed moment in international law,15 its transformative potential is nevertheless curbed by the NUA’s palpable deference to national sovereignty. Even when calling for states to support strengthening the capacity of subnational and local governments to implement effective local and metropolitan multilevel governance, across administrative borders, and based on functional territories, ensuring the involvement of subnational and local governments in decision-making, working to provide them with the necessary authority and resources to manage critical urban, metropolitan and territorial concerns, this is tempered by the prefx ‘in line with countries’ national legislation’.16 Overall, the NUA’s message is clear: states must pursue safe, inclusive, resilient and sustainable urban settlements through targeted policies, mechanisms and practices, specifically including those that advance realization of the right to adequate housing, whilst recognizing that urban local government is indispensable for this pursuit. But the operationalization of this is deliberately ambiguous, respectful to national sovereignty and subservient to national laws, the peculiarities of which are assumed already to be in line with the NUA’s vision. In this chapter, I consider some of the complexities of pursuing the NUA’s directives at the local government level in the developing world, by reflecting on

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the attempts of South African urban local governments to comply with the dictates of the right to adequate housing. By way of this example, the chapter seeks to illustrate the importance of law in clarifying and capacitating the actors and systems responsible for implementing normative commitments. The discussion also highlights some of the drawbacks of assuming that such implementation is possible without the explicit realignment of prevailing legal frameworks. In this respect, the South African experience not only illustrates the potential and pitfalls of pursuing the goals of the NUA through legally institutionalizing the right to housing,17 but also indicates the extent of explicit legal reform required to ensure that such institutionalization yields the desired results.

The evolution of South African housing law and policy The severely fragmented, starkly unequal and racially exclusionary cities that the South African government inherited from the apartheid era were the nearcomplete antithesis of the kind of cities that would subsequently be envisaged by the NUA. Articulating a strong political commitment to address the historical legacy of racially segregated development, the 1996 South African Constitution entrenched a suite of socio-economic rights. Pertinently, section 26 determines: 1 2 3

Everyone has the right to have access to adequate housing. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.18

While justiciable and endowed with legal supremacy, section 26 was obviously not self-executing. Moreover, it was superimposed, frst, on a rigid, individual ownership–fxated common-law property system, and second, on statutory and regulatory land management and spatial planning regimes that were designed to achieve segregationist objectives. These were inimical to the realization of the goals espoused by section 26 and the international law on which it was based.19 The Constitution further ushered in a system of cooperative governance between national, provincial and local spheres. It enjoined local government to provide democratic, accountable and participatory governance focused on sustainable social and economic development, equitable essential service provision, and bestowed it with executive authority, bylaw-making power and administrative competence over a range of functional areas including municipal planning.20 ‘Housing’ was not among these, and instead it vested concurrently with national and provincial government, albeit subject to a determination that its administration ought to be legislatively assigned to capable municipalities to the extent that it ‘necessarily relate[d]’ to local government and could most effectively be administered locally.21 With housing delivery one of the priorities of the post-Apartheid state, section 26 of the Constitution was swiftly buttressed by a slew of legislation and

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supporting policy. In the urban housing context, the most notable laws passed in the Constitution’s wake were the Housing Act 107 of 1997, which purported to ‘lay down general principles applicable to housing development in all spheres of government,’22 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, which aimed to bring eviction law in line with the Constitution.23 While clearly vesting housing policy formulation with national government, the Housing Act envisaged an important implementation role for local government, with duly authorized municipalities obligated to ‘initiate, plan, co-ordinate and enable appropriate housing development’ so as to ensure progressive access to adequate housing alongside sustainable service delivery and the maintenance of health and safety standards.24 These obligations articulated (albeit imperfectly) with more-or-less contemporaneously passed local government laws, in terms of which municipalities were empowered and enjoined to govern in line with legally binding integrated development plans (IDPs), which guide developmental, planning and management decisions during a municipality’s five-year elected term.25 But a convoluted municipal accreditation process in terms of the Housing Act, together with diverse municipal structures and governance arrangements allowed for by the Municipal Structures Act, meant that not all local governments had equal housing-related capabilities or responsibilities.26 Those that were involved in housing delivery – primarily the ‘metropolitan’ municipalities governing the country’s eight largest cities – mostly functioned as implementing agents of policies and programs conceived of, and funded by, national and provincial governments. South Africa’s national housing delivery drive was initially conceived of in terms of the 1994 Reconstruction and Development Programme (RDP), thus predating the 1996 Constitution as well as the legislation alluded to here.27 Motivated by the desire to provide millions of South Africans hitherto excluded from urban economies and property markets with ownership over ‘respectable’ formal dwellings, the RDP envisaged the mass rollout of fully subsidized low-income housing, through large-scale greenfield developments consisting of freestanding houses in suburban-style layout.28 The initial zealous pursuit of the RDP certainly reaped fruit – the Programme and its superseding iterations in subsequent policies is credited for having delivered approximately 4 million houses over a twenty-year period.29 But the impressiveness of this feat has been marred by the poor location of RDP ‘suburbs’ and their poor integration into the existing urban fabric. Dependent on the availability of large tracts of empty, affordable land, the majority of RDP developments occurred on the far outskirts of towns and cities. This meant that they were disconnected from urban cores and attendant economic opportunities – a drawback exacerbated, first, by the continued abysmal state of South African urban public transport networks, and second, by the lag between human settlement development and that of accompanying essential urban amenities such as shops, clinics and schools. The ironic consequence was that the RDP served to entrench and accentuate, rather than to alleviate, the fragmented, sprawled and racialized geography of South African cities.30

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A related criticism of the RDP has been its disconnect from the needs of its beneficiaries. Apart from often ineffectively responding to the need for meaningful access to urban systems and opportunities, the ownership-centered RDP logic was frequently out of step with the needs of a poor and transient urban population with geographically spread place attachments and family responsibilities, for whom ownership posed both a significant financial burden and an inconvenient place dependence.31 The wide range of adaptive responses to this disconnect – including renting out or selling RDP houses, using additional (often informal) residential bases closer to inner cities, densification through backyard shacks and using houses as informal business premises – has left the national government simultaneously baffled and despondent. Yet, continued and unrelenting demand for housing meant that it remained resolutely wedded to the RDP model.32 Lacking both meaningful input into housing policy and resources to implement large-scale human settlement projects of their own design, city governments found themselves bound, and perpetually occupied with, the implementation of nationally or provincially imposed RDP-style projects, even where these were patently ill-suited to local conditions or undermined cities’ spatial planning policies.33 While bigger cities with well-capacitated planning divisions would often use what little input or scope for innovation they had towards making housing projects more flexible, better integrated and responsive to local conditions, the top-down inflexibilities of the housing policy process disincentivized, stifled and frustrated such efforts in the majority of municipalities.34 The constitutionalization of the right to have access to adequate housing did not, at least initially, have a significant impact on the general thrust of housing policy. The first right-to-housing judgment of the South African Constitutional Court, Government of the Republic of South Africa v. Grootboom, was handed down in late 2000. The Court found that the housing policy of the Western Cape Province, as implemented by the Oostenberg municipality (subsequently subsumed into the City of Cape Town) was unreasonable and unconstitutional because it failed to provide for emergency housing for vulnerable groups such as the applicants, who had been evicted from an informal settlement.35 While credited for spurring the subsequent adoption of an emergency housing ‘chapter’ in the National Housing Code,36 this finding was couched in deferent terms, with the Court making clear that it would not interfere with the State’s policy choices as long as these were reasonable. Specifically, the Court rejected an argument that the constitutional right to housing should be interpreted in line with the minimum core approach inherent to the right to adequate housing in the International Covenant on Economic, Social and Cultural Rights, which South Africa had at the time signed, but not ratified. This signaled that the Court would only hold government accountable in terms of international norms where these were formally binding.37 Instead, the judgment developed the constitutional requirement of ‘reasonableness’ into a full-blown review standard, requiring of policies aimed at the progressive realization of socio-economic rights to be balanced, flexible, inclusive and transparent.38 Reasonableness was also held to require a clear division

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and allocation of responsibilities among different spheres of government, as well as the effective national coordination of these.39 But, normatively, the yardstick deferred to government’s policy vision, with the Court emphasizing that ‘a court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent’.40 While arguably appropriate from a separation-of-powers perspective, the Court’s approach has been criticized for its normative sparsity, which was said to relegate the constitutional right to housing to predominantly playing a procedural role.41 Yet, except in the context of evictions (where the Court’s stance has been bolder), it has prevailed, hence limiting the extent to which judicial enforcement of the housing right would substantively guide the normative content of housing law and policy. Housing policy was to be substantively overhauled in 2004, after a ten-year review of the RDP concluded that, despite its numerical successes, it had failed to produce well-integrated human settlements providing good quality of life.42 This was at least partly ascribed to poor alignment of budgets and priorities among spheres of government, as well as between different line functions within municipalities.43 2004’s Breaking New Ground Policy (BNG) explicitly aimed to empower municipalities to take the lead in creating sustainable human settlements, and introduced a range of flexible and demand-responsive housing programmes focused on spatial integration, alongside a rebranded RDP.44 BNG was notable for its focus on municipalities, its commitment to productively involving the private sector in housing delivery and its progressive response to informal settlements, which it aimed to reduce mainly through in situ upgrading, with relocations envisaged only as a last resort.45 But BNG’s implementation never lived up to its promise. National and provincial governments, deterred by a real or perceived lack in local government capacity, were never prepared to relinquish functional responsibility over housing delivery to municipalities.46 The result was that many of the disconnects of the RDP prevailed also in relation to BNG, with cities’ spatial and development plans continuing to be frustrated by higher-level housing programmes.47 Whereas there are several documented instances of innovative and inclusive human settlement responses by cities, especially in relation to accommodating informal settlement practices, national and provincial government tended resolutely to cling to the vision of ‘orderly’, formal housing development.48 The mismatch was especially evident in informal settlements, where the National government appeared to internalize the Millennium Development Goals’ (MDGs’) sub-target pertaining to the improvement of slum conditions as requiring the eradication of informal settlements. Especially in the lead-up to the 2010 Soccer World Cup, government frequently betrayed the spirit of BNG by actively endeavouring to destroy informal settlements and to resettle their inhabitants as a primary course of action.49 In the mid-2000s, the majority of provinces responded to a national directive by drafting legislation aimed at slum eradication, which tended to envisage a mechanical implementation role for

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municipalities. But these were abandoned after the KwaZuluNatal Elimination and Prevention of Re-Emergence of Slums Act50 (which required municipalities to initiate eviction proceedings against inhabitants of informal settlements where landowners failed to do this) was declared unconstitutional,51 thereby retaining space for cities to respond to informal settlements in a context-dependent manner.52 Contemporaneously, an intergovernmental dispute in which the City of Johannesburg challenged the granting of planning permission by a provincial development tribunal for proposed residential developments contravening the City’s IDP culminated in a Constitutional Court judgment affirming municipalities’ exclusive executive competence over municipal planning, and finding that provincial usurpation of such authority was unconstitutional.53 Not only did this judgment finally render cities’ substantive authority over their own spatial form meaningful, but it also led the national legislature to devise the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA), thereby finally replacing the repugnant Apartheid-era ordinances that continued to direct spatial planning. Espousing principles of spatial justice, sustainability, efficiency and resilience,54 SPLUMA requires national and provincial governments to capacitate and support municipalities to conduct rights-conducive spatial and development planning and land-use management.55 SPLUMA happened to resonate well with the subsequently proclaimed SDGs, which would also explicitly inform South Africa’s 2016 Integrated Urban Development Framework (IUDF).56 The IUDF is a comprehensive policy document focused on overcoming cities’ spatial legacy and the fragmented South African intergovernmental relations framework, by channeling urbanization towards the production and effective governance of resilient, inclusive, safe and sustainable cities. The IUDF’s policy levers include an emphasis on mobility and transport, alongside properly resourced, effective and participatory urban governance as well as inter-urban coordination and integration, as integral to this vision.57 But while the IUDF reiterates many of BNG’s commitments (to, for instance, in situ upgrading of informal settlements, inner-city regeneration and densification) and emphasizes the need for devolving the housing function to municipalities in mirroring SPLUMA’s delineation of spatial planning,58 the National Department of Human Settlements’ practices ostensibly remained out of step with its vision. From 2014 onwards, the Department championed the construction of new mega-urban settlements in hitherto peripheral locations, essentially blowing up RDP logic into full city scale. Cities strongly resisted this drive but were near-completely sidelined in policy discussions. Their lack of cooperation may, however, partly be credited for the idea appearing to lose steam by 2018.59 Overall, a picture emerges of a policy environment consistently moored in a strong political vision of housing delivery contributing to the spatial and social transformation of South African society. While in many respects in tune with international norms and the constitutional right of access to adequate housing, this vision has proved remarkably resilient against these norms in the instances where they have clashed. Accordingly, while the implementation of this vision

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has resulted in the production of large numbers of dwellings, housing developments have not always responded to urban contexts or housing needs, and have often fallen short of the substantive standards embodied by the right of access to adequate housing. Linked to this vision has been the near-unfaltering dominance of national government in dictating the terms of its implementation. While several policy initiatives through the years paid lip service to increasing the powers and responsibilities of local government, this never materialized except insofar as necessitated by a court decision arising from a context unrelated to the vindication of the right to housing. Instead, cities were left pursuing ideals of integrated development in terms of a somewhat schizophrenic legal and fiscal framework that simultaneously enjoined them to do so while circumscribing their capacity to deliver on this mandate.

The impact of judicial vindication of the right to housing Simultaneously responsible for ensuring the right to housing’s progressive realization in line with national and provincial policy objectives and for the maintenance of a sustainable urban environment through, for instance, enforcing health and safety standards in the built environment, cities would frequently find themselves having to strike intricate balances between the competing demands of these seemingly complementary mandates.60 From the mid-2000s onwards, their attempts to strike these balances found increasing opposition from human rights NGOs intent on enforcing the constitutional guarantee against eviction. In a range of cases, courts found that cities intent on evicting unlawful occupiers from dangerous and dilapidated inner-city buildings, or on relocating residents from informal settlements deemed unfit for in situ upgrading, were acting unconstitutionally insofar as their practices had the effect of rendering people homeless. The judgments in these cases emphasized that evictions which resulted in homelessness would ordinarily be unconstitutional, and accordingly required all mooted evictions to be preceded by meaningful engagement between residents and cities, in the course of which it would ordinarily be necessary to determine how the shortto medium-term housing needs of would-be evictees were to be met.61 These judgments, which had the cumulative effect of establishing an in-all-butname entitlement to the state provision of temporary alternative accommodation for evictees, are laudable for their strong protections against homelessness, their elevation of the poor’s housing needs in instances where these conflicted with the interests of powerful landowners or developers, and their between-the-line insistence on participatory urban governance.62 They have further been rightly complimented for gradually eroding South African property law’s bias towards the interests of property owners over the habitation needs of poor urbanites with insecure tenure.63 But the judgments have also not always been particularly sensitive to the limited policymaking and fiscal space within which city governments have been relegated to operate in this context. Two cases illustrate this particularly powerfully.

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The first is Residents of Joe Slovo Community, Western Cape v. Thubelisha Homes, where the Constitutional Court found that the temporary but distant relocation of residents from the Joe Slovo informal settlement on the outskirts of Cape Town, to allow for the construction of a mixed-income housing project (driven by National Government in pursuit of BNG), was constitutional. While thus allowing for residents’ temporary displacement (for which it has received significant criticism),64 the Court laid down stringent conditions for relocations, including specifications of the kinds of dwellings to which residents could be relocated and the enforcement of an undertaking to provide residents with transport to schools, jobs and other essential urban facilities.65 While progressive in their intent, these conditions proved extremely onerous for the City of Cape Town, which was opposed to the relocation from the start, instead favouring the settlement’s in situ upgrading. Strung along to bear the brunt of the costs for the implementation of what it believed to be an ill-conceived programme, the City found the judgment’s conditions nearly impossible to implement. Rescued by a change of political leadership in the Western Cape province (with the newly elected, opposition-run provincial government having been supportive of the City’s stance), it indicated to the Constitutional Court, in follow-up litigation brought on behalf of the residents, that it would no longer proceed with relocations. The Court accordingly rescinded its original order.66 While ending well both for the City and for residents, the Joe Slovo litigation illustrates the misalignment between intergovernmental power structures and constitutional responsibilities for giving effect to the right to housing. The bind occasioned by this misalignment is even clearer from the subsequent City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties. Following Grootboom, the National Housing Code made municipalities responsible for providing emergency housing, an obligation effectively extended by the Constitutional Court’s eviction jurisprudence to apply in all instances where cityinstituted health-and-safety evictions would render evictees homeless. In Blue Moonlight, the Court further extended this obligation to apply also towards occupiers evicted at the behest of private land or building owners, holding that to distinguish between the harm suffered by such occupiers and that borne by persons evicted by the State would be artificial and unreasonable.67 The City pleaded that its secondary, implementation-focused role in terms of national housing policy meant that its emergency housing budget was limited and dependent on Provincial support. It accordingly budgeted only for emergency housing for people evicted at its own behest and could not bear the further cost of also housing ‘private’ evictees without provincial assistance.68 The Provincial Government declined a request by the City for additional funding, and the City’s attempts to have it joined to the proceedings were dismissed, with the Court holding that only the city’s obligations were at stake.69 The Court rejected the argument that resource scarcity accordingly absolved the city from providing temporary accommodation to all evictees in its jurisdiction, finding that ‘it is not good enough for the City to state that it has not budgeted for something, if it should indeed have planned and budgeted for it in the fulfillment of its obligations’.70

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Read with the city-led eviction cases that preceded it, the effect of Blue Moonlight was that people could usually not be evicted from their places of residence unless cities provided them with temporary accommodation, regardless not only of the evicting agent but also of the reason for the eviction. Paralyzed, first, by the severe resource implications of this, and second, by further litigation challenging the constitutionality of rules in homeless shelters that it had contracted to assist with providing emergency accommodation,71 the City of Johannesburg effectively halted evictions (including evictions for reasons of health and safety) from buildings in its jurisdiction. While this has been welcomed by human rights lawyers,72 the effect was, first, that owners of unlawfully occupied inner-city buildings were severely burdened, and second, that occupiers were left to remain in unsafe and unhealthy conditions, with deaths and injuries from building fires and collapse in the Johannesburg inner-city area mounting in subsequent years.73

Reflections While the SDGs, the NUA and other international agreements contain a great many worthy human settlement–related objectives, and rightly indicate that a leading implementation role by urban local government is essential for their effective realization, United Cities and Local Government has remarked that ‘too little attention is paid to how these ambitious goals and commitments will be addressed, by whom and with what funds’.74 This chapter adds to that observation questions of ‘through which structures?’ and ‘on what authority?’. South Africa is unique in sub-Saharan Africa for the strength of its constitutional commitment to devolution and developmental local government, and for its justiciable right of access to adequate housing. Indeed, the constitutional entrenchment of this right has, over time, produced much of the legal change that is today envisaged by the NUA. Even so, the process of aligning the legal system and its accompanying functional frameworks to the norms espoused by the right to housing (which, it must be remembered, are but some of the interrelated norms espoused by the NUA) has been far from straightforward or complete. Foremostly, the South African experience underlines that open-ended and nondirective normative commitments are not always swiftly and predictably internalized. While the South African government generally subscribes to the sentiments of the right to adequate housing and its subsequent iterations in documents such as the MDGs and SDGs, its internalization of these norms has sometimes, as in the case of informal settlement upgrading, been contradictory and counterproductive. Moreover, whereas court judgments vindicating the right of access to adequate housing have, through the years, contained many progressive normative directives, these were only effectively subsumed in legal and policy frameworks where they were explicitly contained in the enforceable, ‘order’ parts of judgments. The result is that, more than twenty years of right-to-housing litigation later, the South African legal framework still does not make adequate provision for, inter alia, the social function of property, the centrality of mobility to the notion

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of access to adequate housing, the need to galvanize the agency of informally housed poor residents, the important role to be played by the private sector in housing provision and the need for participatory placemaking and meaningful engagement in urban development.75 Litigation-driven legal development has further had the undesirable effect of piecemeal, reactive and skewed state responses fixated on meeting the inclusion demands of litigating NGOs, arguably at the cost of equally important concerns of sustainability, safety and resilience.76 Moreover, the South African government rightly assumed that the constitutional right of access to housing required a new suite of aligned housing legislation and policy, which duly followed. But it failed to appreciate that this needed to be accompanied by a transformation of the common-law property regime and by a complete overhaul of the legislative framework pertaining to spatial planning, both of which consequently lagged many years behind. More debilitatingly, the disconnect between the legal framework supporting the housing right and the legal structuring of intergovernmental relations has significantly hindered the kind of contextually responsive, city-led human settlements development that the NUA envisages.77 Even as it made successive policy commitments to empowering cities to take the lead in human settlement development, the South African government has never effectively followed through, with the result, first, that cities have never assumed full and effective responsibility for human settlements, and second, that they have more often than not been debilitatingly hamstrung by the mismatch between their human settlement obligations on the one hand and their policymaking authority and fiscal powers on the other.78 The necessarily narrow focus of right-to-housing litigation on the plight of poor urban residents has only served to exacerbate this bind. Given that the legal systems in other states in sub-Saharan Africa are, for various reasons, more hostile towards substantive devolution of power towards local government79 and far less aligned to the substantive human settlement–related norms expressed by the NUA, it is probably safe to assume that the internalization and realization of these norms across the region will lag many years behind. It is going to take more than the NUA’s assumptions of legal compliance and subtle suggestions that effective devolution is essential for the realization of its goals to get domestic legal systems to embody and operationalize all interrelated dimensions of the ‘urban paradigm shift’.

Notes 1 G.A. Res. 71/256*, annex, New Urban Agenda (Dec. 23, 2016), ¶ 23 [hereinafter, New Urban Agenda]. 2 Id. ¶ 9. The SDGs are seventeen global development targets proclaimed by the UNITED NATIONS, TRANSFORMING OUR WORLD: THE 2030 AGENDA FOR SUSTAINABLE DEVELOPMENT, UN A/RES/70/1 (2015). Viewed together, the SDGs strive to eradicate poverty, reduce inequality and ensure environmental sustainability by the year 2030. The NUA may be regarded as an elaboration upon, and implementation agenda for, SDG 11. The SDGs, in turn, followed from the U.N.’s Millennium Development Goals (MDGs), adopted pursuant to the UNITED NATIONS,

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4 5 6 7 8 9 10 11 12 13 14 15 16 17

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MILLENNIUM DECLARATION, UN A/RES/55/2 (2000), which aimed to drastically reduce global poverty by the year 2015. The SDGs purport to consolidate and extend the successes of the MDGs, and to complete that which the MDGs could not achieve. See HELMUT PHILIPP AUST & ANÉL DU PLESSIS, INTRODUCTION: THE GLOBALISATION OF URBAN GOVERNANCE – LEGAL PERSPECTIVES ON SUSTAINABLE DEVELOPMENT GOAL 11, 8 (Helmut Philipp Aust & Anél du Plessis eds., 2019); Michael Riegner, International Institutions and the City: Towards a Comparative Law of Global Governance, Aust & Du Plessis (eds.), id., 38 at 43–47; Sandra C. Valencia, et al., Adapting the Sustainable Development Goals and the New Urban Agenda to the City Level: Initial Reflections from a Comparative Research Project, INT. J. URBAN SUST. DEV. 2 (2019). New Urban Agenda, supra note 1, ¶ 113. Id. ¶ 17. Id. ¶¶ 13(a), 14(a), 31, 105. Id. ¶ 32. Id. ¶¶ 14(a), 31–35, 50, 54, 69, 88, 98–99, 106–08, 111, 114(b). Id. ¶ 31, 46. Id. ¶¶ 77, 97, 109–10. Id. ¶ 31. Id. ¶ 15(a). Id. ¶ 15(b). Id. ¶¶ 15(c), 87, 89. Valencia, et al., supra note 3, at 2. New Urban Agenda, supra note 1, ¶ 90. See also id. ¶ 91. See Ivan Turok & Andreas Scheba, ‘Right to the City’ and the New Urban Agenda: Learning from the Right to Housing, TERRITORY, POLITICS, GOVERNANCE 2 (2018) (discussing ‘legalizing’ the right to housing as the starting point for giving effect to the NUA). See S. AFR. CONST. (1996) § 26. See MARIUS PIETERSE, RIGHTS-BASED LITIGATION, URBAN GOVERNANCE AND SOCIAL JUSTICE IN SOUTH AFRICA: THE RIGHT TO JOBURG 45 (2017); Margot Strauss & Sandra Liebenberg, Contested Spaces: Housing Rights and Evictions Law in PostApartheid South Africa, 13(4) PLANNING THEORY 428, 429–34 (2014); Stuart Wilson, Breaking the Tie: Evictions from Private Land, Homelessness and a New Normality, 126 S. AFR. L. J. 270, 270–71 (2009). S. AFR. CONST. (1996) §§ 40–41, 151–54, 156, Sch. 4B, Sch. 5B. See Marius Pieterse, Urban Autonomy in South African Intergovernmental Relations Jurisprudence, 13 VIENNA J. INT. CONST. L (2019, forthcoming). S. AFR. CONST. (1996) §§ 156(4), Sch. 4A. HOUSING ACT 107 OF 1997 (S.AFR.), preamble. PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND ACT 19 OF 1998 (S.AFR.). HOUSING ACT 107 OF 1997 (S.AFR.) at § 9. MUNICIPAL SYSTEMS ACT 32 OF 2000 (S. AFR.), §§ 23, 26, 35 (discussing IDPs as governance tools for SDG11 and the NUA). See Angela van der Berg, The Pursuit of SDG11 through the Lens of Integrated Development Planning, THE GLOBALISATION OF URB. GOVERNANCE – LEGAL PERSP. ON SUSTAINABLE DEV. GOAL 11, 208, 214–15 (2019). MUNICIPAL STRUCTURES ACT 117 OF 1998 (S.AFR.). 1994 RECONSTRUCTION AND DEVELOPMENT PROGRAMME (S.AFR.). See Sarah Charlton, Inclusion through Housing: Limitations and Alternatives in Johannesburg, 21 URB. F. 1, 4–5 (2010) [hereinafter Charlton, Inclusion through Housing]; Sarah Charlton, Confounded but Complacent: Accounting for How the

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31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48

49 50 51 52 53 54

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State Sees Responses to its Housing Intervention in Johannesburg, 54(12) J. DEV. ST. 2168, 2171–72 (2018) [hereinafter Charlton, Confounded but Complacent]. See Charlton, Confounded but Complacent, supra note 28, at 2168–9; Turok & Scheba, supra note 17, at 7. See Charlton, Inclusion through Housing, supra note 28, at 7–9; Charlton, Confounded but Complacent, supra note 28, at 2181–82; Sarah Charlton, Spanning the Spectrum: Infrastructural Experiences in South Africa’s State Housing Programme, 40(2) INT. DEV. PL. REV. 97, 101 (2018) [hereinafter Charlton, Spanning the Spectrum]; Strauss & Liebenberg, supra note 19, at 433; Turok & Scheba, supra note 17, at 8. See Charlton, Inclusion through Housing, supra note 28, at 6, 12–46; Charlton, Spanning the Spectrum, supra note 30, at 101; Turok & Scheba, supra note 17, at 8, 13. See Charlton, Confounded but Complacent, supra note 28 at 2169, 2172–75; Charlton, Spanning the Spectrum, supra note 30, at 102–16. See Neil Klug, et al., Inclusionary Housing Policy: A Tool for Re-shaping South Africa’s Spatial Legacy?, 28 J. HOUSING & BUILT ENV. 667, 671, 675 (2013); Turok & Scheba, supra note 17, at 7–12. See Charlton, Inclusion through Housing, supra note 28, at 9–10; Charlton, Confounded but Complacent, supra note 28, at 2179–80; Klug, et al., supra note 33, at 672, 675; Turok & Scheba, supra note 17, at 9, 11, 13. Government of the R.S.A. v. Grootboom, 2001 (1) SA 46 (CC) at 69, 95. See PIETERSE, supra note 19, at 46–47; Turok & Scheba, supra note 17, at 6. Grootboom, 2001 (1) SA 46 (CC) at 26–33. Id. at 39–46. Id. at 39–41. Id. at 41. See PIETERSE, supra note 19, at 23, 46 and authorities cited there (discussing a summary of this criticism). “BREAKING NEW GROUND”: A COMPREHENSIVE PLAN FOR THE DEVELOPMENT OF SUSTAINABLE HUMAN SETTLEMENTS 4 (2004). Id. at 4. Id. at 7–8, 10–22. Id. at 6, 10, 12, 15, 20–22, 24. See Klug, et al., supra note 33, at 668–9; Turok & Scheba, supra note 17, at 8–9. Charlton, Confounded but Complacent, supra note 25, at 2177–78; Turok & Scheba, supra note 17, at 9. Turok & Scheba, supra note 17, at 10–11. See Charlton, Confounded but Complacent, supra note 28, at 2173–74, 2179–80; MARIE HUCHZERMEYER, CITIES WITH SLUMS: FROM INFORMAL SETTLEMENT ERADICATION TO A RIGHT TO THE CITY IN AFRICA 172–79 (2011); Klug, et al., supra note 33, at 668–69, 672, 675; Turok & Scheba, supra note 17, at 10–11. See HUCHZERMEYER, supra note 48, at 1–3, 10, 112–20; Riegner, supra note 3, at 47–50, 56; Strauss & Liebenberg, supra note 19, at 433. KWAZULU-NATAL ELIMINATION AND PREVENTION OF RE-EMERGENCE OF SLUMS ACT 6 OF 2007 (S. AFR. KZN.). Abahlali baseMjondolo Movement SA v. Premier, Kwazulu Natal 2010 (2) BCLR 99 (CC). See HUCHZERMEYER, supra note 48, at 202–23; Stuart Wilson, et al., Conflict Management in an Era of Urbanisation: 20 Years of Housing Rights in the South African Constitutional Court, 31(3) S. AFR. J HUM. RTS 472, 499–500 (2015). Johannesburg Metropolitan Municipality v. Gauteng Development Tribunal 2010 (6) SA 182 (CC). See Pieterse, supra note 20. SPLUMA § 7.

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55 See Strauss & Liebenberg, supra note 19, at 433–34. 56 RSA DEPT. COOPERATIVE GOVERNANCE & TRADITIONAL AFFAIRS, INTEGRATED URBAN DEVELOPMENT FRAMEWORK: A NEW DEAL FOR SOUTH AFRICAN CITIES AND TOWNS, 12 (2016). 57 Id. at 39–41. 58 Id. at 60–66. 59 See Richard Ballard & Margot Rubin, A “Marshall Plan” for Human Settlements: How Megaprojects became South Africa’s Housing Policy, 95 TRANSFORMATION 1–24 (2017). 60 See PIETERSE, supra note 19, at 39–40. 61 See Port Elizabeth Municipality v. Various Occupiers, 2005 (1) SA 217 (CC); Occupiers of 51 Olivia Road, Berea Township v. City of Johannesburg, 2008 (3) SA 208 (CC); Pheko v. Ekurhuleni Metropolitan Municipality, 2012 (4) BCLR 388 (CC); Schubart Park Residents’ Association v. City of Tshwane, 2013 (1) SA 323 (CC). 62 See PIETERSE, supra note 19, at 55–56, 215–16, 225–26; Sandra Liebenberg, Engaging the Paradoxes of the Universal and Particular in Human Rights Adjudication: The Possibilities and Pitfalls of ‘Meaningful Engagement’, 12 AFR. HUM. RTS. L. J. 1, 17–20; Strauss & Liebenberg, supra note 19, at 437–39, 442; Wilson, et al., supra note 52, at 474–502. 63 See PIETERSE, supra note 19, at 45, 69; Wilson, supra note 19, at 271–75, 289–90. 64 See Turok & Scheba, supra note 17, at 7; Wilson, et al., supra note 52, at 501. 65 Residents of Joe Slovo Community, Western Cape v. Thubelisha Homes, 2010 (3) SA 454 (CC) at 7. 66 See HUCHZERMEYER, supra note 48, at 147–48, 154–55; PIETERSE, supra note 19, at 58. 67 Johannesburg Metropolitan Municipality v. Blue Moonlight Properties, 2012 (2) SA 104 (CC) at 86–95. 68 Id. at 46–50, 61–62, 68–73. 69 Id. at 43–45. 70 Id. at 74. See also id. at 63, 67–73. 71 See Dladla v. City of Johannesburg, 2018 (2) SA 327 (CC). 72 See Wilson, et al., supra note 52, at 474, 499. 73 See PIETERSE, supra note 19, at 43, 45, 68–70, 224–26 and authorities cited; Turok & Scheba, supra note 17, at 9–10. 74 UNITED CITIES AND LOCAL GOVERNMENT (‘UCLG’), TOWARDS LOCALIZATION OF THE SDGS (2018), at 53. 75 See Charlton, Inclusion through Housing, supra note 28, at 16–17; Turok & Scheba, supra note 17, at 2, 6–7, 10–14. See also UCLG, supra note 74, at 53 (discussing the need for these to give effect to the NUA). 76 See PIETERSE, supra note 19, at 40, 68–70, 211, 223–25 and authorities there cited. 77 See Jaap De Visser, City Regions in Pursuit of SDG11: Institutionalising Multilevel Cooperation in Gauteng, South Africa, in Aust & Du Plessis (eds.), supra note 3, 186–207; Valencia, et al., supra note 3, at 8, 10, 14, 16. 78 See Turok & Scheba, supra note 17, at 10–13. 79 See Marius Pieterse, Devolution, Urban Autonomy and Local Governance in the Cities of SADC (forthcoming 2019).

10 Social inclusion and the New Urban Agenda Street vendors and public space Marlese von Broembsen

Introduction The vast majority of the global workforce, 61%1 – a staggering two billion people – is informally employed. Nearly two out of every three people who are informally employed – 64% – are self-employed. And, the majority of women active in the labour market are employed informally.2 The workforce in cities, in both developing and emerging economies (which together constitutes two thirds of the globe), is overwhelmingly informal. Even in developed economies, one out of every six urban inhabitants is informally employed.3 Since the 1970s, the assumption among orthodox development economists has been that industrialization would lead to employment, and informal employment would disappear.4 Not only has this prediction not materialized, but since the 1980s, cities in developed countries have de-industrialized. James Heinz’s 2006 analysis of fifty-one countries shows that even in countries with robust economic growth, informal employment is growing more rapidly than formal employment.5 The United Nations (U.N.) predicts that by 2050, two-thirds of the world will be living and working in cities. Decent work and housing for new urban dwellers will likely become the key issues for the sustainability of cities. The New Urban Agenda (NUA) articulates a commitment to “promoting full and productive employment and decent work for all, by ensuring the creation of decent jobs and equal access for all to economic and productive resources and opportunities.”6 It recognizes the contribution that informal workers make in cities “while supporting a sustainable transition to the formal economy.”7 In addition to economic inclusion, it emphasizes the need for social inclusion, which it defines as equal participation in decision-making.8 When it comes to the institutions necessary to realize its vision of an inclusive city, however, the NUA is remarkably short on detail. It states only that political, legal and financial institutions are necessary to “broaden inclusive platforms . . . that allow meaningful participation in decisionmaking, planning and follow-up processes for all, as well as . . . co-provision and co-production.”9 This chapter explores the relevance of the NUA’s vision of social inclusion for urban dwellers whose livelihoods are contingent on access to public space

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to trade. Specifically, I am interested in the kinds of institutions that could realize “meaningful participation in decision-making” for informal workers. In most industrialized countries, workers participate in decisions concerning their work (and on the economy more broadly) at the workplace, industry and even at the national/federal level, represented by their trade unions. Although many informal workers are organized in democratic associations, their organizations are seldom recognized as social dialogue partners. This is because labour law only recognizes workers as workers if they have an employer. This chapter focuses on street vendors because they are the most visible, prevalent informal workers in both the Global North and South, they are self-employed (and therefore challenge the labour law paradigm), and because their claim for access to public space to vend is always contested by the propertied middle class and by private property developers: [T]he urban landscape is always a contested terrain, where the propertied, privileged and powerful seek to establish one set of rules governing the use of urban space that is compatible with their city vision, and, conversely, the propertyless, underprivileged, and powerless make use of whatever means are at their disposal to challenge the status quo.10 Street vendors’ claim for access to public space for purposes of generating a livelihood brings the NUA’s idea of a city for all, and of equal participation in decision-making into sharp focus. In many developing countries, the political and economic elites’ aspirations for “world class” cities have led to large-scale evictions of street vendors from streets where they have sometimes traded for decades. Caroline Skinner and Pilar Balbuena’s 2019 analysis of 1,500 newspaper articles from six countries in four languages illustrates, however, that the use of public space is contested in cities all over the globe.11 The Los Angeles City Council recently promulgated the Safe Sidewalk Vending Act that recognizes street vendors’ livelihood claims and provides an enabling regulatory framework.12 But this is a bright spot among the ubiquitous “operation(s) clean sweep”13 that persists in cities as different as Johannesburg, Bangkok, Buenos Aires and New York. The NUA’s call for meaningful participation in decision-making represents an opportunity to legitimate claims by informal workers to participate in a deliberative democratic process that affects not only their livelihoods but also their very identity as inhabitants of cities. Political theorist Nancy Fraser would describe the NUA’s normative commitment to equal participation in decision-making as a “radical-democratic interpretation of the principle of equal moral worth.”14 The chapter begins with a discussion of street vending as emblematic of informal work. I present some statistics on street vendors, discuss their social and economic contribution to cities, and dispel the myth that because they operate informally, it necessarily means that they vend extra-legally or illegally. To be sure, in most countries, their work is over-regulated by a complex set of ordinances or bylaws that emanate from different local authority departments, ranging from

Social inclusion and the New Urban Agenda 147 traffic to health, sanitation and environmental departments. And even in democratic countries, non-compliance with regulations is criminalized and punishable with prison sentences, in some places of up to a year. Thereafter, I discuss three case studies where organizations of street vendors have successfully negotiated for institutional participation in decision-making at the city level. The first is in India, where a coalition of street vending organizations fought for national legislation that compels municipalities to create street vending committees for joint decision-making about the use of public space for vending. The second is South Africa, where a coalition of informal worker organizations – street vendors, fisher-folk, agricultural smallholders, and informal taxis – are using an international soft law instrument to argue for legal reform that will compel municipalities to engage in collective bargaining with self-employed informal workers.15 The last case study is of Monrovia, the capital of Liberia, where the street vendor organization and the local authority have signed a threeyear collective bargaining agreement. I conclude with an analysis of the strengths and weaknesses of the three institutions and propose some lessons for realizing the NUA’s commitment to social inclusion.

Situating street vendors within the informal economy The term “informal sector” was used for the first time in 1971 by British anthropologist Keith Hart to describe self-employed Ghanaians’ economic activities.16 Hart challenged the prevailing notion that under- and unemployed people constitute a passive “reserve army of [labour]” waiting to be employed by capitalist enterprises.17 He saw the informal sector as an intrinsic part of the “urban economy” that comprised both formal and informal enterprises.18 And he noted multiple linkages between the formal and the informal: informal retailers bought their goods from formal businesses; consumers used their wages earned working for formal enterprises to purchase goods from informal enterprises; and some informal enterprises sold their goods and services to the formal sector.19 Moreover, he noted that the informal sector plays an important function in providing the city with “essential services” that are otherwise unaffordable for poorer consumers.20 Hart found that individuals often engaged in more than one activity and often engaged in both formal and informal employment.21 For example, a watchman for a formal enterprise (which even if it paid less than the informal activities, provided reliable, stable income) would at the same time operate an informal gin bar, informal restaurant, hairdressing business or repair radios.22 Other times, informal activities acted as a temporary buffer between formal jobs.23 Most people in the informal sector were self-employed, but others were employed, for example, to carry goods to informal markets for an informal sector enterprise.24 After Hart’s discovery, the International Labour Organization (ILO) commissioned three country missions on the informal sector, which shaped the ILO’s subsequent position on the informal sector as follows: (a) the informal sector provides a solution to the problem of unemployment, since by the 1970s it was

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clear that industrial development was not going to create enough jobs; (b) the informal sector is productive and contributes to the GDP; and (c) compared to the formal sector, it suffers from structural deficits, including a lack of access to markets, discrimination and a “lack of support” from government.25 It was only in 1993, however, that the International Conference of Labour Statisticians (ICLS) defined the informal sector – as enterprises characterised by low barriers to entry; small-scale, labour-intensive; family-owned; reliant on skills acquired outside of formal schooling; and operating in unregulated and competitive markets – and informal enterprises began to be counted in national statistics.26 It took another ten years, until the 2003 ICLS, for the informal economy to be defined more broadly to include the informal sector (enterprises) and informal employment.27 The latter category refers to people who receive wages, but without a contract of employment that triggers labour rights and social protection. This category includes casual work, day labourers, industrial outworkers, and unpaid family work.28 Currently 126 countries include informal workers – both self-employed and wage-employed – in their labour force statistics.29

Street vendors’ socio-economic contribution to the city Street vendors (both hawkers who move around and those vending from stalls and tables outside of markets) are the most visible informal workers because they operate in public spaces such as streets, pavements, public transportation hubs and informal markets, and they are ubiquitous in both developed and developing economies. Approximately 18% of informal urban workers globally are street vendors, and in low-income countries, one in four urban informal workers is a street vendor.30 In sub-Saharan Africa, some 43% of informal workers are street vendors.31 Women comprise a significant share of the sector, particularly in subSaharan Africa. A little over half – 51% – of women in sub-Saharan Africa who are informally employed are vendors.32 This figure excludes women in agriculture. Women vendors are concentrated in perishables (e.g., vegetables, fruit, food) and personal services (such as hair-dressing), which have smaller profit margins than the durable commodities sectors dominated by men.33 The sector provides employment not only for street vendors but also for support services to the sector.34 For example, in Mexico City street vendors employ others to set up and break down their stalls and to clean the streets after informal markets close down. In Dakar, young men carry bags of produce for women shopping in wholesale markets. In Ghana, young women are “head-loaders” who carry goods on their heads to markets. In many countries, street vendors employ others as security guards. In 2011, the action-research-advocacy network Women in the Informal Economy Globalizing and Organizing (WIEGO) undertook a ten-city study – the Informal Economy Monitoring Study (IEMS) – that documented the economic, social and cultural contribution that street vendors make to the cities in which they trade and which sought to understand the structural impediments they faced.35 Street vendors make several significant contributions. They contribute

Social inclusion and the New Urban Agenda 149 to local authorities’ revenue by paying a range of fees, ranging from daily “taxes” to operate, licencing and permit fees, and yearly or monthly sanitation taxes.36 In some African countries, these costs make a significant contribution to local authorities’ coffers. In Lilongwe, the capital of Malawi, the local authority has admitted in writing that street vendors contribute approximately 25% of its revenue.37 Street vendors also make a significant contribution to food security for low-income inhabitants of the city.38 I recently lived with a street vendor in Dakar, Senegal and could observe the micro-economy at work. Families shopped daily for their evening meals. They did not have to travel far, as street vendors bought products from wholesale markets to sell in the neighbourhood informal market. Vendors cut sweet potatoes and peppers in half to make them affordable for everyone. Street vendors provide access to cheap commodities (such as new and secondhand clothes), as well as to services (such as tailoring, hairdressers and repairs) and they are located close to their customers’ homes. They also provide cooked food and access to fresh produce for the middle class, too – think of the food stalls emblematic of Bangkok and Mexico City. Beyond Food’s response to the 2018 large-scale eviction of street vendors in Bangkok sums this up: What’s being ignored in the sanitizing of urban streets is how essential vendors are to the fabric of urban life in many places around the world. Vendors feed residents with affordable prepared foods and fresh fruits and veggies. They provide quick and convenient eats and produce in bustling spots, near stations, residential complexes and parks.39 Finally, street vendors provide services uniquely required by their customers’ cultural preferences. For example, in Accra, Ghana, even the middle class go to street vendors for weaves and other hair-dressing services. In India, street vendors make and sell accessories needed by their customers to celebrate religious festivals; and in several countries, street vendors write letters for people who are illiterate.

The regulation of street vending: the law on the books and on the ground Local authorities regulate the use of public space – they decide which areas are designated trading areas and decide on the terms and conditions for trading. Despite street vendors’ significant social and economic contributions, constitutional protections (in the form of a right to trade) and progressive policies in many countries, few cities recognise street vendors as legitimate economic actors.40 Bamu’s analysis of street vending in five cities – Accra, Delhi, Bangkok, Durban and Lima – shows that in every city which does not create sufficient jobs in the formal economy, there is a dearth of trading space. The necessity of making a livelihood forces street vendors to trade in undesignated spaces, and makes them subject to the ubiquitous, and seemingly inevitable, informal governance practices.41 Around the world, this takes the form of local government officials

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evicting them from public space, collecting “taxes” for turning a blind eye, fines, confiscation of goods and even imprisonment.42 Bamu notes that: Street vendors in Accra, Delhi and Bangkok reported having to pay municipal officials and (in India) ‘musclemen’ exorbitant sums of money in exchange for protection from eviction and sanctions. In Bangkok, the local authorities sanction vending in undesignated areas and vendors must pay an official monthly fine that is significantly higher than regular trading fees. Other traders operate in undesignated spaces without paying fines or protection fees. This forces them to operate as mobile vendors or pack and display their goods in such a way that they can easily escape from the authorities.43 Even where street vendors have a legal entitlement to trade, the regulatory matrix is complex, inaccessible and often contradictory. For example, in Accra, street vendors are regulated by ten city bylaws (only accessible online and in English) emanating from different departments within the municipality that sometimes contradict each other.44 Despite paying for legal entitlement to access public space, street vendors are seldom provided by local authorities with the necessary infrastructure, such as access to public toilets and water supply (which causes urinary tract infections, particularly for women), or sanitation on site and refuse removal.45 Contravention of bylaws in many democratic countries carries a criminal sanction. For example, contravention of bylaws in Accra, Delhi and Dakar and in several municipalities in South Africa carries the sanction of a fine and/or imprisonment for up to one year. Considering that trading in prohibited spaces is not a criminal offence, the sanction is excessive and reads as a violation of fundamental rights.46 Moreover, Roever notes that the threat of prosecution is often used to extract bribes, and street traders incur debt to pay the bribe.47 Street vendors report that officials fabricate grounds for confiscating consumables for their own consumption: “Those police are no longer buying fruits for their consumption. They do not even know how much they cost. This is because they eat the very same fruits they confiscate from us!”48 The fines are often more than what the goods are worth, coercing vendors to relinquish claims to their goods.49 A market vendor leader in Accra recently explained at a dialogue with lawyers50 how the “law on the ground”51 works. She stated that officials will cite real or imagined infringements of the bylaws, and even if the trader knows that she/he has complied with the law, the opportunity cost and the unpredictability of the traffic and sanitation court’s process makes handing over 20 cedes ($4) to officials preferable to navigating the court process. The “law on the books” (in the form of sanitation, public health, environmental and traffic regulations) that regulates access to space most often reflects post-colonial, neo-liberal development and urban planning paradigms that are modelled on cities of the industrialised global north. Implicit is a vision of cities as “clean” and “orderly.” In this framework, informal trade is viewed as temporary, chaotic, illegitimate and illegal. In the words of former UN-Habitat Executive

Social inclusion and the New Urban Agenda 151 Director, Anna Tibaijuka, urban planning law is underpinned by a belief that “in the planned city . . . the poor should at best be hidden or at worst swept away.”52 In recent years, the built environment, urban planners, and urban and critical legal geographers have rendered visible the contestation over public space and the privileging by local authorities of the elites’ interests over those of ordinary city inhabitants.53 This privileging has taken the form on the one hand of real estate corporations purchasing public land for (private) development, and on the other hand elite inhabitants advocating for “world-class” cities. This has led to large-scale “operation(s) clean sweep” of informal economic activity by local governments around the globe. The NUA’s vision of equal participation in decision-making represents a significant opportunity for inhabitants with seemingly divergent interests to engage in deliberative democratic processes about the use of public space. The next section discusses three different institutional experiments in cities in the Global South.

Social dialogue and collective bargaining with municipalities: three case study backgrounds Informal worker organizations’ strategy in India and South Africa was to fight for legislation at the national/federation level that compels municipalities to establish institutions that facilitate street vendors’ participation in decision-making about their terms and conditions of work, including access to public space. In the case of India, the legislation relates only to street vendors. In the case of South Africa, informal worker organizations have used ILO Recommendation 204 on Formalising the Informal Economy to argue for amendments to the Labour Relations Act to cover self-employed informal workers earning below a particular threshold. In Monrovia, the capital city of Liberia, the street vendor organization has negotiated directly with the municipality. The institution is therefore created and sustained through contract law. In all three instances, the processes have been initiated, and fought for, by organizations of street vendors, and in each case the organizations are members of an international organization, StreetNet. StreetNet is a democratic, global federation of street vendor organizations that has affiliates in fifty-three countries, and it is a member of the WIEGO network.54 Its constitution stipulates that representation of women in leadership structures is a prerequisite for membership and organizing should prioritize working-class women.55 I discuss each example before analyzing their respective strengths and weaknesses.

The Indian Street Vendors (Protection Act of Livelihood and Regulation of Street Vending) Act, 2014 From the 1980s on, many Indians moved from rural areas to cities to seek work.56 Because urbanization was not accompanied by industrialization, they created their own jobs and many became street vendors. Currently, there are approximately ten million street vendors in India.57 Their taking to the streets

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to vend was met by resistance from middle-class inhabitants, and the police and the local authorities routinely implemented large-scale evictions, failed to renew street vendors’ licenses to trade, fined them and seized their goods.58 Street vendors began to organize, and with the help of public interest lawyers, took local authorities in Delhi and in Mumbai to court. In the first case, Sodan Singh v. New Delhi Municipal Committee, the Supreme Court of India held that street vendors needed access to pavements to exercise their constitutional right to trade and carry on a business.59 Taking note of the competing interests invested in the use of pavements, the court held that pavements cannot be for the exclusive use of pedestrians, and street vendors must therefore be given regulated access to pavements to trade.60 In a landmark 1985 judgment, Olga Tellis & Others v. Bombay Municipal Corporation & Others,61 the Supreme Court of India held that the constitutional right to life should be interpreted to include a right to trade and to earn a living.62 The court recognized that when the state is unable to create employment, it cannot deny citizens the right to create their own source of livelihood, upon which their very existence depends.63 In a decision four years later, Sodan Singh v. New Delhi Municipal Committee,64 the court shifted the discourse by recognizing street vendors’ contribution to the economy in general and to consumers in particular, arguing that they “add to the comfort and convenience of [the] general public, by making available ordinary articles of everyday use for a comparatively lesser price.”65 In 1998, the National Association of Street Vendors of India (NASVI) was formed, with the intention of advocating for national legislation to compel municipalities to protect the livelihoods of street vendors. A key objective was to institutionalize street vendors’ participation in decision-making regarding the use of public space in cities across India. NASVI is an umbrella body of street vendor organizations, trade unions and non-governmental organizations (NGOs). Its top structure is an Executive Committee, which is elected by its members (excluding NGOs). The constitution stipulates that at least one-third of the executives must be women.66 NASVI commenced by commissioning research in seven cities to understand regulatory and urban planning frameworks, and to assess police and consumer attitudes, as well as street vendors’ socio-economic conditions. It found that street vendors work ten to fifteen hours a day, and their goods and services are in high demand. Armed with these findings, NASVI set about changing the narrative about street vending: from being a public nuisance responsible for making the streets dangerous and unsanitary, to one that recognizes their social and economic contribution.67 The use of public space is a local authority competency, so it took more than a decade for NASVI to persuade the federal government (through a media campaign, protests and litigation) to legislate on street vending. Finally, the government established a task team, which included representatives from NASVI, residents’ associations, civil society and the government, to draft a policy on street vending. The policy recognized that everyone has a right to work and is entitled to equal protection by the law. It also recognized the need to balance two competing policy considerations: on the one hand preventing overcrowded,

Social inclusion and the New Urban Agenda 153 unsanitary streets, while on the other creating an enabling regulatory framework for street traders to generate a livelihood. In 2014, the policy was enacted in the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act (Street Vendors Act).68 The key features of the Act are the following: first, the legislation mandated the creation of a street vending committee (SVC) in each zone, which would be the decisionmaking body on anything to do with street vending. The committee must be comprised of different stakeholders, including residents’ associations, different departments within local authorities and street vendor representatives. The Act stipulates that street vendors must comprise 40% of the SVC, of which one-third must be women. Every five years the SVC must do a survey of street vending and all existing street vendors (who are over fourteen years of age, have no other form of livelihood and who trade themselves, or are assisted by a family member) must be given certificates to vend. Certificates are renewable every five years and may not be traded or transferred. If a street vendor dies, the certificate goes to a spouse or child if they fulfill the same conditions. The certificate states the zone where the vendor may trade, the days and times, as well as the conditions and restrictions of trading. If street vendors trade in accordance with the certificate, the police cannot prevent them from exercising their right to trade (section 27).69 If a vendor has no certificate or contravenes the terms of their certificate, they may be fined. The local authority may limit the number of licenses to 2.5% of the population in the zone. If the number of street vendors exceeds the limit, the vendor committee presumably decides how to deal with the situation. Vendors also have responsibilities: they must keep their spaces clean and hygienic (section 15), they must maintain public property (section 16) and they must pay a monthly maintenance fee (section 17) in addition to the annual trading fee. If a vendor transgresses the terms of the certificate, the SVC can cancel the certificate, but the street vendor has a right to take the decision on appeal to the local authority and has a right to be heard.70 Where there are natural markets that are fifty years old, these must be declared “heritage markets.” Any existing market cannot be declared a “non-vending zone.” Overcrowding cannot be a basis for declaring a non-vending zone, and neither can unsanitary conditions unless the unsanitary nature of the area is entirely the fault of the street vendors. Vendors may only be relocated if there is an urgent need, and affected vendors must participate in the planning and implementation of the relocation. They cannot be worse off than before the relocation. Vendors must be given thirty days’ notice to move, and if they fail to move, they may be fined and their goods seized. Once they pay the fine, the local authority or police must return perishables the same day and non-perishables within two working days. If they lose any assets as a result of the move, they must be compensated. Finally, if public land is sold or leased, the rights of street vendors trump any new rights. Implementation of the Street Vendors Act is uneven, and NASVI reports that in many jurisdictions the local authority is acting in bad faith. In retrospect, it

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would have been a good idea for the Task Team to have paid attention to processes, including operational rules for the vendor committees, and included a dispute resolution mechanism, as well as administrative law due process requirements on the part of local authorities.

South Africa: ILO recommendation 204 and collective bargaining for the self-employed Article 25 of the U.N. Declaration of Human Rights states that freedom of association and collective bargaining are universal human rights.71 These rights constitute two of the core fundamental labour rights agreed to by ILO’s 187 member states. Traditionally, collective bargaining is an institution that has enabled workers to aggregate their voices and their political power (at a factory, industry and national level) to act as a countervailing force to capital.72 In recent decades, as capital has become mobile, globalization has led to an international division of labour, union density has decreased, and labour has all but disappeared as a political class.73 Other rationales have been offered in support of collective bargaining, including: it fosters workplace democracy and “industrial citizenship,”74 it corrects labour market failures and “facilitates” worker voice.75 Labour law scholars recognize that the institution of collective bargaining has to adapt to include ‘non-standard work’ and even self-employed workers. This has been achieved in three ways. First, several jurisdictions have included a deeming provision in their labour relations legislation that defines “dependent contractors” below a certain income, as employees. For example, South Africa’s section 200A of its Labour Relations Act contains seven rebuttable presumptions that establish an employment relationship. For example, if the tools to do the work are provided by another person, that person is deemed to be the employer, and the onus is on them to prove otherwise. Second, some jurisdictions have legislated for a specific occupational group to be able to bargain collectively with parties that are deemed to be employers. This is the case in Thailand, Australia and Uruguay, which have introduced legislation to cover sub-contracted informal homeworkers in supply chains. Finally, in Australia and Canada, specific occupational groups, such as artists, truck drivers and home care workers, may bargain collectively with parties with whom they regularly contract, even though the contractual relationship is not an employment relationship.76 All these cases, however, assume a contractual relationship, and the legislation seeks to redistribute bargaining power between contracting parties, even if there is no employment relationship. In the case of many informal workers, including street vendors, the local authority has the power to determine whether or not traders have access to public space and on what terms. The relationship between municipalities and street traders is clearly not founded on contract (besides a social contract). In 2014, the Employer group in the ILO called for an International Labour Conference on Formalizing the Informal Economy. The global advocacy-research

Social inclusion and the New Urban Agenda 155 network, WIEGO, facilitated the participation of thirty informal worker leaders in the two-year discussion to ensure that informal workers’ perspectives on formalization were heard. In June 2015, the International Labour Conference (ILC) adopted ILC Recommendation concerning the transition from the informal to the formal economy (No. 204) (R204).77 An important victory for informal workers is the recognition of self-employed workers’ right to freedom of association and collective bargaining, and the recognition of public spaces as workplaces. Organizations of street vendors, waste recyclers, informal taxis and agricultural smallholders in South Africa formed a coalition to advocate for the implementation of this international soft law instrument. Aided by the ILO and WIEGO, they negotiated for a R204 Task Team, which was established under the auspices of the National Economic Development and Labour Council (NEDLAC). NEDLAC is a national forum in which the three social partners – government, organized labour and capital – engage in social dialogue. The aim is to reach consensus on policy and legislation. The informal worker coalition drafted a “Concept Note” arguing for the Labour Relations Act to be amended to extend collective bargaining to ownaccount workers.78 The Concept Note argues (a) that “worker” should replace “employee” to reflect section 23 of the Constitution; (b) representative organizations of own account workers should be permitted to register as trade unions and represent their members in collective negotiations and social dialogues; (c) a framework must be agreed on to enable trade unions of own account workers to bargain collectively with local government and other government institutions over matters of mutual interest; (d) informal self-employed workers must also have access to the industrial dispute resolution mechanisms, including the Commission for Conciliation Mediation and Arbitration and the Labour Court; and (e) self-employed workers must be recognized as part of the labour constituency and have a seat at the table in all the NEDLAC chambers.79 NEDLAC established a R204 sub-committee, which has endorsed the Concept Note and has established a legal reform sub-committee with representatives from the Department of Labour, organized labour (the union confederation, COSATU), organized informal workers, and organized business, to make recommendations for legal reform. In South Africa, as in many other countries, collective bargaining can take place at the level of the enterprise/workplace and at a sectoral level. For a trade union to be “recognized” as the bargaining partner at either of these levels, it must show that it represents the most workers in the sector. Negotiations at a sectoral level then apply to all workers and all employers in the sector, regardless of whether the employer or worker was a member of the negotiating parties. The recognition and representation of informal workers, the different bargaining levels, and the practicality of negotiating with a local authority that has many different departments are some of the issues that the legal reform sub-committee will have to tackle.

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The case of Monrovia, Liberia: a memorandum of understanding Nearly nine out of every ten working people in Liberia – 86.8% – and 92% of women is informally employed.80 Our story begins in 2009 in the capital city of Monrovia with a stand-off between the police (who blamed street traders for garbage in the streets) and street vendors (who blamed the city for the collapse of solid waste management in the city). The police routinely carried out raids, confiscated street vendors’ goods and physically assaulted them. The traders organized, registered their organization – which eventually grew to 3,000 paid members and became known as the Federation of Petty Traders and Informal Workers Union of Liberia (FEPTIWUL)81 – and began to negotiate with Monrovia City Corporation (MCC), the statutory body that manages the city.82 It took a decade of negotiations, and some failed attempts with two different administrations, to conclude a Memorandum of Understanding (MOU) in September 2018. This MOU is one of the few comprehensive written collective agreements between a city authority and street vendor organization in the world.83 The introductory paragraphs of the agreement state that: FEPTIWUL plays an important part in the development of Liberia’s economy through the positive impact it has on Liberia to the point of forming a new economic sector that is governed by principles and values of responsibility, entrepreneurship indicia of democracy and economic citizenship of Liberia. The aforementioned tenets and values have contributed to FEPTIWUL . . . maintaining sanity and sanitary environment in the areas in which FEPTIWUL operates.84 The recognition of the informal economy as a “new economic sector” and the confation of responsibility and entrepreneurship with democracy and economic citizenship is instructive, as is the reference to FEPTIWUL’s members keeping streets “sanitary.” The latter speaks to the decades of trust-building by FEPTIWUL. The agreement establishes institutions for co-decision-making, outlines the responsibilities of the respective parties and includes provisions in case of breach of contract. The agreement is for three years and binds each party’s successors. It establishes two key institutions: a “Federation Task Force” and a “sanitation team.” The Taskforce, which is the decision-making and implementation body, comprises three FEPTIWUL members; nine members from different MCC departments and state institutions (including the departments of planning; the solid waste; environment; community service); the city police and the mayor’s office. The transport union and the media also enjoy representation. The task team’s vision is to ensure that street trading is “organized and regulated” so that streets are clean and there is a “unity and a good working relationship” between the city police and the task force. A terms of reference is annexed to the agreement. The sanitation team (run by FEPTIWUL) is responsible for overseeing

Social inclusion and the New Urban Agenda 157 traders’ cleaning the streets where they trade. The MCC in turn has committed to introducing a daily collection and disposal of garbage. FEPTIWUL takes responsibility for keeping a database of its members (which it must share with the MCC within three months), issuing members with identity cards, and annually collecting permit fees from members. It assumes responsibility to ensure that its members stay within designated zones (according to a map annexed to the agreement), comply with regulations that require them to give pedestrians space, and have their identity cards and permits on them at all times. In exchange, the MCC undertakes to “protect FEPTIWUL members and their goods” on streets that are designated for trading. And the MCC has a contractual obligation that, in the case where a member of the MCC violates the agreement, it will take disciplinary action against the member. If an official breaches the agreement a third time, FEPTIWUL may take legal action. Where vendors are trading in sites that are not designated for trading, the parties will “design a strategy” for their relocation within an agreed-upon timeframe. The parties have agreed to hold monthly and quarterly meetings and to monitor implementation of the agreement. If street vendors fail to pay their “municipal taxes” they will be fined between twenty-five and fifty-five U.S. dollars and issued a warning. In the case of nonFEPTIWUL members, after two warnings the MCC will institute legal proceedings against them. Members of FEPTIWUL are given three warnings. In case of contravention of regulations, goods are confiscated, and they must be returned within a day of paying the fine if perishable and seven days if non-perishable. Failure to pay the fine will result in legal proceedings. In case of a breach of agreement, either party can give thirty days’ notice that it intends to terminate the agreement. “Management level” will meet within the thirty days to try and resolve the difference in good faith. In the event that the issue is not resolved, either party can take the matter to arbitration or institute legal proceedings. Unlike the Indian legislation, the MOU foresees that MCC officials may be obstructive and provides for a disciplinary process.85

An analysis of the three case studies In all three cases, the institutionalized spaces for participation in decision-making were initiated and only made possible by strong, democratic organizations. Organizations enjoyed legitimacy with their members and were accountable to them. In both the Indian and South African examples, federal/national legislation obligates municipalities to establish institutions that enable informal workers to participate in decision-making about the use of public space. In India, the legislation only facilitates the participation of street vendors. In South Africa, a reformed Labour Relations Act would apply to a range of occupational groups and facilitate participation in decision-making both at the national level through NEDLAC and at the local level in cities. The Monrovian example relies on law of contract without the legislative framework. The disadvantage of this approach is two-fold: first, once the agreement

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lapses, there is no statutory obligation for the MCC to conclude another agreement. This is particularly problematic when new officials take office. Second, the agreement applies only to members of the trade union, not to the sector as a whole. This means that it regulates the approximately 3,000 members, but non-members are not protected by the agreement. On the positive side, it includes both substantive provisions and procedural safeguards. The annexures outline the composition and the procedures for the task force and sanitation team, and the agreement includes provisions that anticipate a possible breach of contract by either party. Of all three case studies, implementation is most successful in Monrovia. The Indian legislation specifies the terms and conditions of work, but unlike the Monrovian agreement, it does not include a mechanism for dispute resolution or for street vendor organizations to hold their local authority accountable should the local authority fail to comply with the national legislation or act in bad faith. At the very least it should have included due process administrative justice provisions. While amending labour legislation to give effect to R204 is as yet untested, it may be more durable institutionally than the other two examples. Negotiations must include all the stakeholders – labour, employers and the state – which forges solidarity between informal worker organizations and trade unions. Informal workers would have access to well-established industrial dispute resolution mechanisms, and once labour lawyers and scholars get their heads around collective bargaining for self-employed informal workers, informal workers could no doubt rely on their support. From an institutional perspective, the NUA should be read alongside R204, which resonates with the NUA agenda in two respects. First, it recognizes a spatial dimension to livelihoods and includes a right for informal workers to access public space. Second, R204 recognizes the need for informal workers to engage in meaningful participation in decision-making and proposes a particular institution – labour law’s collective bargaining – to give effect thereto. R204 also provides a framework for the city to “support a sustainable transition to the formal economy.”86 Moreover, R204 is a product of tripartite negotiations among governments, employers (capital) and organized labour (which includes informal workers) from 187 countries, and therefore enjoys a certain legitimacy. And, informal workers could use the reporting mechanisms of the ILO to place pressure on their governments for their recognition and inclusion in social dialogue and collective bargaining process. The ILO has invoked article 19 of its Constitution to require governments to report on the implementation of R204. Organized employers and labour (including informal worker organizations) needed to submit reports on their government’s implementation of R204 to the ILO’s committee of experts, a panel of twenty jurists, by June 2019.87

Conclusions on informal employment, municipalities and the NUA The NUA states that by 2050 the urban population will have doubled. In Africa, the projected population growth is in part attributable to the eight million new

Social inclusion and the New Urban Agenda 159 entrants into the job market every year.88 Kate Meagher argues that jobless growth in Africa means that the population “tsunami”89 results in mass youth unemployment. Even in the most industrialized countries – Nigeria and South Africa – the youth unemployment rate is double that of adults: 38% of youth are unemployed in the former, and nearly 52% in the latter.90 To be sure, the NUA’s mantra that cities should promote “full and productive employment”91 is out of sync with the political economy of work, not only in Africa, but in cities around the world. Nevertheless, the NUA’s normative commitment to leaving no one behind, meaningful participation in decision-making for all city inhabitants and equal access to “public goods and quality services . . . infrastructure, . . . and livelihoods,”92 as well as paragraphs 13(d) and 59’s explicit recognition of the contribution made by “the working poor in the informal economy” and paragraph 100’s statement that “street level floors” should be designed to accommodate both formal and informal local markets, are powerful advocacy tools for the urban working poor, including organized informal workers. Furthermore, this commitment is implicit in realizing the social function of the city. Realizing this commitment represents a critical political opportunity for the organized urban poor to contest not only their exclusion but also the terms of their social and economic inclusion. Fraser’s theory of justice recognizes that “parity of participation”93 is necessary not for inclusion (which more often than not is on adverse terms) but for redistribution. Canadian labour law and development scholar Kerry Rittich argues that “some of the central distributive justice struggles of the new economy – labour/capital, north/south, male/female- are effectively resolved in the context of work.”94 In the contemporary global economy, most work is informal. And in both developing and emerging countries, most often there is no employer, not even a notional one. Instead, the city municipality determines the working poor’s terms and conditions of work, particularly if their livelihoods (such as street vending) rely on access to public space. That is not to say that the capital is absent. Global capital (particularly real estate developers and brands and retailers) is significantly invested in the distribution of rights to public land, particularly in developing countries. While neither the NUA nor the R204 are conventions, arguably they constitute international soft law instruments that represent an important challenge to labour law scholars to re-imagine the institution of collective bargaining for self-employed workers to negotiate with local authorities, capital and urban elites, both as workers and as citizens. Labour law and heterodox economics scholars note that in the new global order, one of the implications of footloose, transnational capital is that democratic decision-making within nation states is under threat.95 The NUA’s call for democratic decision-making at the city level is a very interesting and important counter to the widespread disillusionment with democracy at the national level.

Notes 1 INT’L LAB. ORG. [ILO], WOMEN AND MEN IN THE INFORMAL ECONOMY: A STATISTICAL PICTURE (2018), www.ilo.org/wcmsp5/groups/public/-dgreports/dcomm/documents/publication/wcms_626831.pdf.

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2 FLORENCE BONNET, ET AL., WIEGO, MEN AND WOMEN IN THE INFORMAL ECONOMY: A STATISTICAL BRIEF (2019), www.ilo.org/wcmsp5/groups/public/-ed_protect/protrav/-travail/documents/publication/wcms_711798.pdf. 3 Id. at 7. 4 Caroline Moser, Informal Sector or Petty Commodity Production: Dualism or Independence in Urban Development?, 6 WORLD DEV. 1041 (1978); Colin Williams & Mark Lansky, Informal Employment in Developed and Developing Economies: Perspectives and Policy Responses, 152 INT’L. LAB. REV. 355 (2013). 5 JAMES HEINTZ, INT’L LAB. ORG. [ILO], GLOBALIZATION, ECONOMIC POLICY AND EMPLOYMENT: POVERTY AND GENDER IMPLICATIONS (2006). 6 G.A. Res. 71/256*, annex, New Urban Agenda ¶ 14, 56 (Dec. 23, 2016) [hereinafter New Urban Agenda]. 7 Id. ¶ 13(d), 59. 8 Id. ¶ 25. 9 Id. ¶ 41. 10 Thomas Coggin & Marius Pieterse, Rights and the City: An Exploration of the Interaction Between Socio-Economic Rights and the City, 23 URB. F. 257, 257 (2012). 11 Caroline Skinner & Pilar Balbuena, Where are the Inclusive Cities? Street Vendors Globally Face Increasing Hostility, WIEGO (May 7, 2019), www.wiego.org/ blog/where-are-inclusive-cities-street-vendors-globally-face-increasing-hostility. 12 Cal. Gov’t Code § 51038 (West 2019). 13 The name given to the Johannesburg local authority’s eviction of 10,000 street traders in 2011 from the inner city, which was successfully challenged in the Constitutional Court. 14 NANCY FRASER, SCALES OF JUSTICE: REIMAGINING POLITICAL SPACE IN A GLOBALIZING WORLD (2009). 15 INT’L LAB. ORG. [ILO], RECOMMENDATION 204: RECOMMENDATION CONCERNING THE TRANSITION FROM THE INFORMAL TO THE FORMAL ECONOMY (2015), www.ilo. org/wcmsp5/groups/public/-ed_norm/-relconf/documents/meetingdocument/ wcms_377774.pdf. 16 Keith Hart, Informal Income Opportunities and Urban Employment in Ghana, 11 J. MOD. AFR. STUD. 61 (1973). 17 Id. 18 Id. 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 Moser, supra note 4. 26 MARTHA ALTER CHEN, WIEGO, THE INFORMAL ECONOMY: DEFINITIONS, THEORIES AND CHALLENGES (2012). 27 Id. 28 Id. 29 ILO, supra note 1. 30 SALLY ROEVER, WIEGO, INFORMAL ECONOMY MONITORING STUDY SECTOR REPORT: STREET VENDORS (2014). 31 Sally Roever & Caroline Skinner, Street Vendors and Cities, 28 ENV’T & URBANIZATION 359 (2016). 32 Id. 33 This information, as well as the information in the following paragraph, is also based on both my colleagues’ and my observations pursuant to our fieldwork in these locations over the past twenty years.

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40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68

Roever & Skinner, supra note 31. Id. Id. Id. Id. Caitlin Carr, Netflix’s “Street Food” Shows the Real Struggles of the Working Poor, WIEGO (May 9, 2019), https://medium.com/wiego/netflixs-street-foodshows-the-real-struggles-of-the-working-poor-8-stories-confirm-the-harshda2cc847df97. PAMHIDZAI BAMU-CHIPUNZA, WIEGO, LESSONS FROM THE WIEGO LAW PROJECT: THE STREET VENDING SECTOR (forthcoming 2019). ROEVER, supra note 30. Alison Brown, Claiming the Streets: Property Rights and Legal Empowerment in the Urban Informal Economy, 76 WORLD DEV. 238 (2015); ROEVER, supra note 30; Skinner & Balbuena, supra note 11. BAMU-CHIPUNZA, supra note 40. Id. Id.; ROEVER, supra note 30. BAMU-CHIPUNZA, supra note 40. ROEVER, supra note 30. Id. at 24. Id. WIEGO and Advocates for Community Alternatives organized a day-long dialogue between organizations of informal workers and union and public interest lawyers in Accra, Ghana on May 2, 2019. See Oliver Wendell Holmes, The Path of the Law, 110 HARV. L. REV. 991 (1996) (drawing the distinction between the law on the books and the law on the ground). Vanessa Watson, “The Planned City Sweeps the Poor Away . . .”: Urban Planning and 21st Century Urbanization, 72 PROGRESS PLAN. 151, 153 (2009). John Lovering, The Recession and the End of Planning as we Have Known it, 14 INT’L. PLAN. STUD. 1 (2009); Watson, supra note 52; Roever & Skinner, supra note 31. See generally STREETNET, www.streetnet.org (last visited May 17, 2019). Chris Bonner, et al., Informal Work Mobilizing and Organisation: Linking Global with Local Advocacy, in THE ROUTLEDGE COMPANION TO PLANNING IN THE GLOBAL SOUTH (Gautam Bhan, et al. eds., 2018). SHALINI SINHA & SALLY ROEVER, WIEGO, INDIA’S NATIONAL POLICY ON URBAN STREET VENDORS (2011), www.wiego.org/sites/wiego.org/files/publications/ files/Sinha_WIEGO_PB2.pdf. Madhu Purnima Kishwar, Part I: The Making and Unmaking of a Model Market for Street Vendors, MANUSHI, www.manushi.in/articles.php?articleId=1566#.VJju4V4AB4 (last visited Mar. 24, 2019). SINHA & ROEVER, supra note 56. Sodan Singh v. New Delhi Municipal Corporation (1989) 4 SCC 155 (India). Sally Roever, Informal Trade Meets Informal Governance: Street Vendors and Legal Reform in India, South Africa, and Peru, 18 CITYSCAPE 27 (2016). Olga Tellis & Others v. Bombay Municipal Corporation (1985) 3 SCC 545 (India). Id. Id. at 548–50. Sodan Singh, 4 SCC at 155 (India). Id. at 168. NASVI Organizational Structure, NASVI. SINHA & ROEVER, supra note 56. The Street Vendors (Protection of the Livelihood and Regulation of Street Vending) Act, No. 7 of 2014, INDIA CODE.

162 69 70 71 72 73 74 75 76 77 78

79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95

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Id. § 27. Id. § 15–17. G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948). Karl Klare, Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law, 4 BERKELEY J. EMP. & LAB. L. 450 (1981). WOLFGANG STREECK, HOW WILL CAPITALISM END? (2016). Guy Davidov, Collective Bargaining Laws: Purpose and Scope, 21 INT’L J. COMP. LAB. L. & INDUS. REL. 81 (2004). Shae Crystal, Collective Bargaining Beyond the Boundaries of Employment: A Comparative Analysis, 37 MELBOURNE U. L. REV. 662 (2017). Id. ILO, supra note 15. “Own-account workers are those workers who, working on their own account or with one or more partners, hold the type of job defined as a self-employed job . . .” Glossary of Statistical Terms, OECD, https://stats.oecd.org/glossary/ detail.asp?ID=1986 (last visited Aug. 12, 2019). Concept Note on Legal Reforms required to align South African laws with ILO Recommendation 204, ILO publication (forthcoming 2020). INT’L LAB. ORG. [ILO], SOCIAL DIALOGUE AND THE TRANSITION TO THE FORMAL ECONOMY (forthcoming 2019). Id. JANE BARRETT, GLOBAL DEAL, SOCIAL DIALOGUE AND THE TRANSITION TO THE FORMAL ECONOMY (forthcoming 2020). Id. Memorandum of Understanding between the Monrovia City Corp. and The Fed’n of Petty Traders and Informal Workers Union of Liber. (Sept. 27, 2018) (on file with author). Id. New Urban Agenda, supra note 6, ¶ 13(d). Int’l Lab. Org [ILO], Revised Proposed form for Reports to be Requested under Article 19 of the ILO Constitution in 2019, ILO Doc. GB.333/INS/5(Rev.) (June 6, 2018). Kate Meagher, The Scramble for Africans: Demography, Globalisation and Africa’s Informal Labour Markets, 52 J. DEV. STUD. 483 (2016). Id. at 484. Id. New Urban Agenda, supra note 6. Id. ¶¶ 13, 34. FRASER, supra note 14. Kerry Rittich, Global Labour as Social Policy, 14 CANADIAN LAB. & EMP. L.J. 227, 233 (2008). See Brian Langille, Seeking Post-Seattle Clarity- and Inspiration, in LAW IN AN ERA OF GLOBALIZATION: TRANSFORMATIVE PRACTICES AND POSSIBILITIES 137, 146 (2004). See also STREECK, supra note 73.

11 Lessons from post-disaster shelter policy for the New Urban Agenda Chien-yu Liu

Introduction This chapter focuses on lessons learned from post-disaster shelter provision to shed light on the New Urban Agenda (NUA), adopted at the United Nations Conference on Housing and Sustainable Urban Development in 2016, from legal and policy perspectives. The NUA envisions “a better and more sustainable future” and commits to people-centered approaches1 and urban and rural development.2 It is rooted in international human rights instruments and includes climate and disaster risk reduction agenda. For instance, the NUA commits to ensuring the human rights of refugees and internally displaced persons and migrants,3 calls to explore feasible solutions to climate and disaster risks in cities and human settlements to secure local populations’ shelter and economic needs,4 and uses principles of equality and non-discrimination as a basis for establishing legal and policy frameworks.5 How governments respond to disasters and disaster displacement provides a linkage to connect these measures. In 2018, more than 17 million of the 28 million newly displaced persons were displaced by disasters.6 The Philippines, the country with the highest number of new displacements by disasters, had 4 million people newly displaced by disasters.7 It is further estimated that an average of 17.8 million people are at risk of displacement because of floods.8 Additionally, around 80% of these people at risk live in urban or periurban settings.9 To date, however, no international organization is specifically mandated to address the protection and assistance of persons forcibly uprooted in urban settings due to disasters or those who are forcibly uprooted by disasters and thus relocated to urban areas. Neither is there a dedicated guideline or instrument that deals with trapped populations in urban settings due to disasters. At the same time, challenges specific to urban settings or relocation related to urban areas are likely to grow. On the one hand, disasters sometimes are the catalyst to migration. On the other hand, migration is also a way of adaptation. Given the impact of disaster displacement on populations and inevitable occurrences of natural hazards, learning from the responses to past disasters is critical to implement the plans set out in the NUA. And governments and disaster response entities need to keep up with the migration trend to better respond to future disasters.

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The following chapter discusses urban and rural linkages in the relocation process and shelter policies in Japan and the Philippines. Location and functionality of shelter oftentimes are the top concerns in the relevant policy and law. Fundamentally, how well relocated people may access their livelihood and maintain their community ties matters. Issues surrounding local cultures, as well as disaster risk interpretation, are also critical when establishing laws and policies. This chapter will highlight how to support the establishment of legal and policy frameworks, particularly in regards to shelter and displacement issues, to shed light on the NUA.10

Background of the case studies Tohoku Earthquake and its aftermaths in Japan (2011) On March 11, 2011, a Richter-Scale 9.0 earthquake hit the east coast of Honshu, Japan. The epicenter was about 200 kilometers away from the coast, and the earthquake triggered a tsunami, which then caused a nuclear power plant meltdown. The Tohoku Earthquake shocked the Japanese people and the international community by the unprecedented scale of its impact. More than 18,500 people were killed or went missing.11 Even two years after the incident, an estimated 315,000 people remained displaced.12 The nuclear power plant’s radiation leak created risks to nature, human beings, and other creatures, and the exact level of radiation risk has been difficult to measure. Economically speaking, the disastrous event caused hundreds of billions of U.S. dollars in loss, according to the Cabinet Office of Japan.13 The Japanese government evacuated people after the nuclear power plant explosions. The Tohoku Earthquake showed that even countries with advanced early warning systems can still be devastated by a natural disaster. Japan had been known for its disaster response system, yet the unprecedented scale of the Tohoku Earthquake and its aftermath exceeded Japan’s level of preparation. The tsunami warning system had promptly released warnings two to three minutes after the earthquake.14 However, the tsunami raced toward the coastal areas of Japan so fast that the inhabitants had only seven to twelve minutes to retreat.15 In addition, the concrete sea walls along the east coast of Honshu were designed to hold back tsunamis of around ten feet high. Yet, the height of the tsunami that day far exceeded that measure, reaching a height that occurs approximately once every 100 or 150 years.16 The sea walls could not withstand the high waves, yet the residents and the emergency response authorities, failing to realize the magnitude of the threat and the insufficiency of the walls, lowered the alert.17 Thus, although Japan is one of the most prepared countries in tsunami prevention and preparedness,18 the magnitude of the disaster brought on one of its darkest days in the twenty-first century. One of the most serious results of the tsunami was the explosion of the Fukushima nuclear power plant. Although the plant met Japan’s safety standards, it could not sustain the force of the impact and exploded. As a result, the Fukushima

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No. 1 nuclear power station started to release radioactive leakage. The meltdown created health concerns for schoolchildren and produce. The tsunami hit the coast in the afternoon when some schools were in session. The resulting meltdown thus exposed children to radiation, particularly because many school uniforms in Japan consist of shorts and skirts. The meltdown also affected the Honshu area, which was known for its produce. The radiation leakage polluted the soil, water, and air. As a result, other areas in Japan and other countries banned importing potentially contaminated produce from the area. The government of Japan thus faced extremely high economic losses in addition to all the other disaster consequences. Additionally, after the nuclear power plant explosion, the Japanese government enacted evacuation plans and ordered the residents to evacuate without informing the evacuees of the potentially prolonged duration of the evacuation. The residents thought they would return soon afterward, but the information gap and prolonged recovery put them in protracted displacement. The government has also been criticized for its lack of transparency.19

Typhoon Haiyan in the Philippines (2013) Typhoon Haiyan, also known as Yolanda, is the deadliest natural disaster in the Philippines’ history. Haiyan, which struck in 2013, affected 11.5 million people.20 Its aftermath exposed issues of displacement and shelter policy. On November 8, 2013, Typhoon Haiyan struck the Philippines and killed more than 6,000 people.21 Cities such as Tacloban suffered severe impacts. According to the Philippines’ National Disaster Risk Reduction and Management Council, more than 4 million people were displaced and more than a million houses destroyed.22 The death tolls and displacement make this event the most serious natural disaster in the Philippines’ history. The international community contributed substantial funds to support the disaster response work. In Britain, for instance, the Disasters Emergency Committee raised an unprecedented 73 million-plus British pounds in a month; British fund-raising on behalf of Typhoon Haiyan victims lasted for six months.23 According to the then President of the Philippines Benigno Aquino III, the rebuilding would require more than 8 billion U.S. dollars.24 One challenge aid agencies faced was reaching affected persons in remote or isolated areas. While more than 1.6 million affected persons received aid, many still had no access to aid one month after the event due to geographical constraints.25 In December 2013, it was estimated that almost 15 million persons were affected by the disaster.26 One of the priorities after Haiyan was providing shelter for the millions of Filipinos who had lost their homes. In order to properly address this need, however, government and humanitarian organizations needed to be able to make accurate assessments, in the midst of disaster response and relief, about the number of affected persons (including internally displaced persons), how to locate them, and what to provide for them. Yet the assessment task itself is challenging; it is

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not easy to accurately determine the number of people in need. In the case of Typhoon Haiyan, there were hundreds of assessment reports, with myriad discrepancies and gaps in the data. It is essential, however, to be able to have accurate data, analyze the assessments, and filter useful information in order to better understand, monitor, and meet the different needs of displaced people. Thus, a group of agencies – the Department of Social Welfare and Development of the Government of the Philippines, the International Organization for Migration, the Internal Displacement Monitoring Centre, and SAS – conducted evidencebased research to fully assess the displacement wrought by Typhoon Haiyan. According to their evidence-based report, as of May 2014, more than 2 million people were living without adequate shelter or durable housing.27 More than 26,000 of them lived in temporary or transitional housing.28 Another 200,000 people were waiting for clarification on whether they would be “permitted to return or to stay and settle in homes that may be categorized as unsafe due to their vulnerability to further storms and other hazards.”29 The report also highlighted social vulnerabilities. It noted that some people, such as children, might become even more vulnerable to future disasters or displacement because their needs in the wake of Haiyan were poorly recognized or seen.30 The report thus suggested that making “[p]rogress towards sustainable solutions for all displaced men, women and children is key to the recovery and resilience of both the displaced and wider affected population.”31 Some housing projects involved both local labor and materials. The Philippine Red Cross built houses with a concrete core, with an attached latrine, or with lumber, bamboo, and woven indigenous materials.32 Beneficiaries also contributed labor in return.33 Similarly, the National Disaster Risk Reduction and Management Council (NDRRMC) of the Philippines estimated that around 4.1 million people (890,895 families) were displaced by Haiyan among the 16 million persons (3,424,593 families) affected by the storm.34 Thus, shelter was a key focus in emergency response and recovery efforts, and it is under the camp coordination and camp management (CCCM) cluster. Internally displaced persons generally stayed at either collective sites or in dispersed settings.35 Collective sites included evacuation centers, transitional sites, and spontaneous sites.36 The former two are generally organized by the governments. Evacuation centers generally use pre-existing buildings, such as schools, as displacement sites. Transitional sites offer a temporary shelter to the displaced persons before they can safely return or be relocated to the permanent site. As to spontaneous sites, they refer to the places where displaced persons live collectively outside of government-designated sites. People also lived in what were known as dispersed sites, that is, living with friends or relatives, in tents or other makeshift shelters on or around their original homes, and in privately owned or rented alternative accommodations.37 The Disaster Response Operations Monitoring and Information Center of the Department of Social Welfare and Development and the CCCM Cluster’s Displacement Tracking Matrix monitored the evacuation centers.38 The CCCM Displacement Tracking Matrix also monitored spontaneous sites and transitional

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sites and collected information based on gender, age, and other vulnerabilities.39 These transitional sites included tent cities. The Displacement Tracking Matrix data showed that the delayed completion of bunkhouses led to an increase in tent cities.40 In addition, the number of female residents in tent cities decreased over the tracking period in all age groups under 59 years old. The decrease was believed to be because female residents found other places to move to; the reason they left was thought to be due to the poor quality of the living conditions in the tent cities.41 Even though Japan and the Philippines are experienced with disasters, the two recent disasters discussed here both led to protracted displacement. The effects of displacement, aggregated by uncertainty in the recovery process, make individuals even more vulnerable. Legal and policy frameworks surrounding shelter play a critical role to either alleviate or exacerbate the situation. Thus, learning from these events is necessary for governments and stakeholders to embody the NUA’s commitment to displaced persons and in calling for better urban governance.

Concerns of displaced persons about post-disaster shelter policies Besides factors such as conditions and safety of shelter, a few other issues as follows need to be taken into account for future legal and policy frameworks surrounding shelter policies.

Access to livelihoods A safer inner land relocation site can mean pulling the community members further from their source of livelihood. This is particularly significant to fishermen and others who rely heavily on nature for their livelihood. When access to their means of livelihood becomes difficult, the relocated persons would resist the new shelter or would need to develop alternative livelihoods. Taking the Philippines as an example, internal displacement is not new to the Philippines, and both natural hazards and conflicts contribute to displacement. Six months after Typhoon Haiyan hit the Philippines in November 2013, more than 2 million people were living without adequate shelter or durable housing. More than 26,000 of them lived in temporary or transitional housing. Another 200,000 people were waiting for clarification on whether they would be “permitted to return or to stay and settle in homes that may be categorized as unsafe due to their vulnerability to further storms and other hazards.”42 The Internal Displacement Monitoring Centre estimated that around 500,000 people were internally displaced nationwide as of February 2015. Natural hazards–related displacement accounted for 80% of the displacement, and the conflicts and violence in Mindanao accounted for around 1.9%. Adequate access to livelihoods at that time was a critical but unmet need for persons relocated for shelter in the Philippines. Relocated persons often return to their original neighborhood because they cannot make a living in the new

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communities.43 Elizabeth Ann Maly, an international disaster recovery scholar at Tohoku University in Japan, discovered that in rural areas, [T]he main factor [that contributes to disaster response challenges] is tied to the livelihood and the access to work and income generation to the residents affected. . . . A lot of people are fishermen, so [moving away from coastal areas means] they are moving away from their source of income.44 Give2Asia, a donor organization that responded to Typhoon Haiyan in the Philippines, envisioned a long-term engagement and holistic approach in Guiuan Island and hoped their contribution to the islanders’ shelter would also be what the local community needs. To fulfil this goal, Give2Asia assessed the community needs, such as the livelihoods of the community members. After understanding community needs for alternative livelihood and relocation, Give2Asia partnered with a local organization that had demonstrated a long-term engagement with the fishing communities. Alexie Ferreria-Mercado, a Give2Asia field advisor for the Philippines, explained that Give2Asia had no experience in Guiuan Island prior to the assessment, and they would rely heavily on the reports, feedback, and recommendations from their local partner to assess the community needs for shelter. They concluded that the community needed more permanent housing and alternative livelihoods because fishing boats were not fully recovered.45 In terms of how to be a match, there is this island community that needed more permanent housing because . . . most of the community live along the shoreline. We assessed that they cannot fully recover without permanent shelter, and they cannot fully come back to fishing because at that time, and actually currently, a lot of the fish boats have not been fully recovered, so there is a need for alternative livelihood. . . . We spent some time getting to know the land, the island itself geographically before we considered permanent housing within the relocation site, whether the relocation site within the island is good in terms of documentation, land titles, etc., was it also amenable for the community to have a relocation site that will take them farther away but in a safer location.46

Different mindsets and interpretations of risk based on experience Besides livelihood, how people interpret risks varies, yet this idea is not always considered during the policymaking process. Taking post-Tohoku Earthquake relocation planning in Japan as an example, one Japan-based interviewee, a professor researching disaster management planning and urban and regional planning, pointed out that people interpret risks differently according to their experiences. The interviewee found that: [F]ishermen who used to live close to [the] coast consider the future tsunami risk very small because they live near the ocean, and by living close

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to ocean, they communicate with the ocean and at the same time they get profits because they make a living with fishing. But they also understand the risk or ocean or sea that can be disaster-leading during tsunami or the storm surge. But then, the risk for [a] future tsunami is smaller than losing their livelihood, meaning, (moving) inland. For people who did not know anything about tsunami impact or who do not really communicate with the ocean or have their life dealing with [the] ocean, their risk of [a] future tsunami will be large.47 Ferreria-Mercado also mentioned relocation is about the affected person’s mindset, and it takes a long process to change. She specifed that: We all know that it will be safer to move upper land [because] it is a no-build zone and there should not be houses near the shoreline. It is easier said than done. Sometimes there are communities willing to move, some not willing to learn early warning devices or even destroy the devices . . . because they don’t want to relocate, they do not want the hassle [of] stay[ing] in [an] evacuation center.48

Land squatting, local legal issues, and housing rights The process of constructing housing for persons affected by disasters involves dealing with regulations, land permits, and project management. To push these construction projects forward, it requires knowing how to deal with different government agencies and regulations. Thus, lawyers are helpful because they can make sure that their clients are complying with the law. They can also draft or review contracts with suppliers or contracts with the contractors. At the same time, land squatting and unclear land titles or outdated registry systems add challenges to the shelter provision process. These issues lead to land disputes, and disasters make it even more complicated. The Philippines is an example. Spontaneous settlement and land squatting are a reality in the Philippines. After Typhoon Haiyan, locals shared concerns over the reconstruction processes because it could impact their status in relation to the land.49

Prolonged time of displacement and associated losses After the Fukushima incident, the evacuation policy specifically prohibited the residents from bringing along their pets. Without questioning the government’s order, the residents in the evacuation zone left their homes with the idea that they would only be gone a couple of days. Many of them left their pets and farm animals at home without knowing that the evacuation and displacement would, in fact, go on for years. Thus, because the government provided insufficient information and excluded animals in the evacuation plans, many of these animals died of hunger or dehydration because their owners left them chained.

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Some had become food for their starving counterparts. A photographer and other volunteers risked their lives to check on animals in the restricted zone, and they witnessed heart-breaking scenes. Many animals had died. Although people from the civil society tried to rescue the animals, their capacity to do so was limited.50 As of 2014, three years after the event, many animals remained in need of help.

Local cultures affect participatory processes Local cultures and identities are often neglected in official disaster response policies, but they often form the foundation of individual decisions. Even though regulations may be in place, local cultures and identities might overwrite the system. For instance, hierarchy affects people’s decisions. Japan is an example. In cities and fishery villages, the decision-making processes vary because dynamics and power relationships among the locals are different. Even if the process is expected to be more flattened and less hierarchical, local community compositions play a role in changing dynamics. For instance, in traditional fishing communities, owners of fishing operations have more economic and political power than the employees. People are used to following what the owners say, rather than voicing their opinions.51

Conclusion Lessons from post-disaster shelter provisions in Japan and the Philippines are critical in both urban and rural settings. They offer valuable insights to reflect on approaches to put the NUA into action and to build legal and policy frameworks. A few takeaways for the implementation plans of the NUA: first, most affected persons are concerned about access to livelihood, and not every person is willing to leave their homes and adapt to a new lifestyle. For survivors, losing friends or family members is already devastating; adapting to the new environment after a disaster can be even more stressful. Finding a balance between safety and individual livelihoods and helping people develop alternative livelihood is hard but worth trying. Second, because of different perspectives toward risks, tailoring disaster response policy to the characteristics of urban and non-urban areas is extremely important. Third, land titles and registry system are important to secure land tenures and facilitate the shelter provision and reconstruction process. Fourth, considering the uncertainty in prolonged displacement, a more inclusive shelter policy is necessary to prevent further tragedies and losses. Fifth, understanding local cultures and designing a decision-making process that is adaptive to these cultures are fundamental to creating effective communications about law and policy with the communities. These lessons loop back to the points highlighted by the NUA to establish a supportive framework, such as promoting participatory planning processes52 and anchoring in inclusive, implementable, and participatory urban policies,53 to build urban governance.

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Notes 1 G.A. Res. 71/256*, annex, New Urban Agenda (Dec. 23, 2016), ¶ 15(c) [hereinafter, New Urban Agenda]. 2 Id. ¶ 26. 3 Id. ¶ 28 states: We commit ourselves to ensuring full respect for the human rights of refugees, internally displaced persons and migrants, regardless of their migration status, and support their host cities in the spirit of international cooperation, taking into account national circumstances and recognizing that, although the movement of large populations into towns and cities poses a variety of challenges, it can also bring significant social, economic and cultural contributions to urban life. We further commit ourselves to strengthening synergies between international migration and development at the global, regional, national, subnational and local levels by ensuring safe, orderly and regular migration through planned and well-managed migration policies, and to supporting local authorities in establishing frameworks that enable the positive contribution of migrants to cities and strengthened urban–rural linkages. 4 Id. ¶ 144 states that: We will explore and develop feasible solutions to climate and disaster risks in cities and human settlements, including by collaborating with insurance and reinsurance institutions and other relevant actors, with regard to investments in urban and metropolitan infrastructure, buildings[,] and other urban assets, as well as for local populations to secure their shelter and economic needs. 5 Id. ¶ 89. 6 INTERNAL DISPLACEMENT MONITORING CENTRE, GLOBAL REPORT ON INTERNAL DISPLACEMENT (2019), www.internal-displacement.org/global-report/grid2019/. 7 Id. 8 Id. 9 Id. 10 This chapter recognizes arguments around resilient cities in the NUA and Sustainable Development Goals. This chapter does not deal with these issues, particularly those surrounding data and technology. 11 Editorial, Two Years After the 3/11 Disasters, JAPAN TIMES (Mar. 11, 2011), www. japantimes.co.jp/opinion/2013/03/11/editorials/two-years-after-the-311-di sasters/#.Uy9ZOK1dU-M. 12 Id. 13 Great East Japan Earthquake, RECONSTRUCTION AGENCY, www.reconstruction. go.jp/english/topics/GEJE/index.html (last visited Sept. 20, 2019). 14 Japan’s Tsunami Victims Only Had 15 Minutes Warning, DEUTSCHE WELLE (Mar. 12, 2011), www.dw.com/en/japans-tsunami-victims-only-had-15-minuteswarning/a-14904863. 15 Id. 16 Id. 17 Id. 18 Tsunami Warning Systems: Lessons from Japan, VOICE OF AMERICA (Mar. 14, 2011), www.voanews.com/east-asia-pacific/tsunami-warning-systems-lessons-japan. 19 MICHELLE YONETANI, PROTRACTED DISASTER DISPLACEMENT: RECOVERY POSTPONED 6 (2017), https://reliefweb.int/sites/reliefweb.int/files/resources/20170206idmc-japan-case-study.pdf. 20 Typhoon Haiyan: Aid in Numbers, BBC NEWS (Nov. 14, 2013), www.bbc.com/ news/world-asia-pacific-24899006.

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21 Typhoon Haiyan Death Toll Rises over 5,000, BBC NEWS (Nov. 22, 2013), www. bbc.com/news/world-asia-25051606 [hereinafter Typhoon Haiyan Death Toll]; see also Philippines Thanks World for Typhoon Haiyan Aid, BBC NEWS (Feb. 8, 2014), www.bbc.com/news/world-asia-26096479 [hereinafter Philippines Thanks World]. 22 Id. 23 Typhoon Haiyan: UK Disaster Appeal Raises over £73M, BBC NEWS (Dec. 7, 2013), www.bbc.com/news/uk-25273818. 24 Philippines Thanks World, supra note 21. 25 Typhoon Haiyan Death Toll, supra note 21. 26 Id. 27 MICHELLE YONETANI & LORELLE YUEN, THE EVOLVING PICTURE OF DISPLACEMENT IN THE WAKE OF TYPHOON HAIYAN: AN EVIDENCE-BASED REVIEW 2 (2014), www.iom. int/files/live/sites/iom/files/Country/docs/The-Evolving-Picture-of-Displace ment-in-the-Wake-of-Typhoon-Haiyan.pdf. 28 Id. 29 Id. 30 Id. 31 Id. 32 Kate Marshall, 66,000 New Homes for Typhoon Haiyan Survivors, INTERNATIONAL FEDERATION OF THE RED CROSS AND RED CRESCENT SOCIETIES (Nov. 25, 2017 3:34 PM CET), www.ifrc.org/en/news-and-media/news-stories/asia-pacific/philippines/ 66000-new-homes-for-typhoon-haiyan-survivors-69672/. 33 Id. 34 NAT’L DISASTER RISK REDUCTION AND MGMT. COUNCIL, UPDATES RE: THE EFFECTS OF TYPHOON “YOLANDA” (HAIYAN) (2014), www.ndrrmc.gov.ph/attachments/article/ 1329/Update_on_Effects_Typhoon_YOLANDA_Haiyan_17APR2014.pdf. 35 YONETANI & LORELLE, supra note 27, at 14. 36 Id. Displacement sites are under the camp coordination and camp management (CCCM) cluster. See CAMP COORDINATION AND CAMP MANAGEMENT PHILIPPINES, DISPLACEMENT SITES INFO SHEET (2013), http://cccmphilippines.iom.int/sites/ default/files/documents/CCCM%20Displacement%20Sites%20Infosheet%20 14%20Dec%202013.pdf (last visited June 20, 2017). 37 YONETANI & LORELLE, supra note 27, at 14. 38 Id. 39 Id. 40 Id. at 31. 41 Id. 42 Id. 43 ANGELA SHERWOOD, ET AL., RESOLVING POST-DISASTER DISPLACEMENT: INSIGHTS FROM THE PHILIPPINES AFTER TYPHOON HAIYAN (YOLANDA) 4 (2015), www.brook ings.edu/wp-content/uploads/2016/06/Resolving-PostDisaster-Displacement Insights-from-the-Philippines-after-Typhoon-Haiyan-June-2015.pdf. 44 Video Teleconference Interview with Elizabeth A. Maly, Associate Professor, IRIDeS, Tohoku University (Oct. 30, 2015). 45 Video Teleconference Interview with Alexie Ferreria-Mercado, Manager of Fiscal Sponsorship and Former Philippines Field Advisor, Give2Asia (Oct. 12, 2015). 46 Id. 47 Video Teleconference Interview with Anonymous, Professor (Oct. 5, 2015). 48 Id. 49 SHERWOOD, ET AL., supra note 43, at 52. 50 Yasusuke Ota: The Abandoned Animals of Fukushima, HUIS MARSEILLE, https:// huismarseille.nl/en/exhibitions/yasusuke-ota/ (last visited Sept. 19, 2019).

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51 Maly, supra note 44. 52 New Urban Agenda, supra note 1, ¶ 92 states: We will promote participatory age- and gender-responsive approaches at all stages of the urban and territorial policy and planning processes, from conceptualization to design, budgeting, implementation, evaluation and review, rooted in new forms of direct partnership between [g]overnments at all levels and civil society, including through broad-based and well-resourced permanent mechanisms and platforms for cooperation and consultation open to all, using information and communications technologies and accessible data solutions. 53 Id. ¶ 86 states: We will anchor the effective implementation of the New Urban Agenda in inclusive, implementable and participatory urban policies, as appropriate, to mainstream sustainable urban and territorial development as part of integrated development strategies and plans, supported, as appropriate, by national, subnational and local institutional and regulatory frameworks, ensuring that they are adequately linked to transparent and accountable finance mechanisms.

12 The challenges of urban mobility regulation and the New Urban Agenda1 Andrés Boix-Palop

Introduction Urban mobility and metropolitan transportation systems are at the core of the most significant challenges facing our cities in the twenty-first century. The general framework derived from the United Nations (U.N.) Sustainable Development Goals, the concrete actions to be taken following the Paris Climate Agreement (PCA) adopted within the U.N. Framework Convention on Climate Change (UNFCCC), and the New Urban Agenda (NUA) outline the importance of reshaping systems of urban mobility as a part of global policy changes required to mitigate greenhouse gas emissions. Although the dangers of climate change are of paramount importance, they are closely related to highly visible and enduring problems that have proven difficult to solve through current mobility policies, such as pollution and congestion related to private transportation systems that are dependent on fossil fuels. In addition, efficient transportation, ways of solving social inequalities in accessing such services, and essential safety questions represent the basic elements to be considered by urban transportation regulation. Striking a balance among these elements for public powers obligated to fulfill such goals constitutes one of the most prominent challenges that we face today. The NUA is the main regulatory framework derived from the U.N. for promotion of this balance. The NUA draws attention to the essential value of urban mobility and transportation as a fundamental feature and condition of every city’s social function, including social and ecological dimensions.2 The underlying notion, in specific proclamations of the NUA, is quite clear: mobility and transportation are essential to any human settlement, allowing inhabitants to enjoy universal access to drinking water, sanitation, food security, education, and air quality, among other needs. For example, Paragraph 113 promotes “measures to improve road safety and integrate [them] into sustainable mobility.” And Paragraph 117 emphasizes “better coordination between transport and urban and territorial planning departments . . . through sustainable urban and metropolitan transport and mobility plans.”3 The NUA explicitly links transportation and mobility to social inclusion. Paragraph 13(f) states that public powers have to produce “age- and gender-responsive”

Challenges of urban mobility regulation 175 mobility planning, thereby guaranteeing the availability of transportation systems capable of effectively linking people, places, goods, services, and economic opportunities to offer every citizen the possibility of conducting a normal social and economic life. Promotion of equitable and affordable access to sustainable transportation services must account for needs associated with disadvantaged groups such as women, children and youth, older persons and persons with disabilities, migrants, indigenous peoples, local communities, and any others in vulnerable situations. Such vulnerable groups are also taken into account in relation to safety in Paragraph 113, and this mandate is explicitly reinforced, for instance, for persons with disabilities in Paragraph 36 and for informal settlements and the poor in Paragraph 54. This is also true of concepts of social cohesion with respect to safety and environmental sustainability, as evidenced in Paragraph 50.4 The NUA thus poses important challenges to the traditional regulation of urban mobility as a substantial part of its new and ambitious idea of the citizens’ “right to the city” and to a city in which social and environmental issues are properly addressed.5 Some regulatory approaches need to be modified or intensified, which is difficult in certain cases, and the disruptive emergence of new agents and market niches related to urban transportation, such as digital sharing platforms and new forms of mobility, including electric, will force solutions to be adopted sooner rather than later.

The reinforcement of traditional regulatory instruments Most of the NUA’s provisions pertaining to urban mobility affect environmental regulations and policy decisions regarding public transportation systems that are not new. The general design of these legal instruments is therefore not about change in a substantive way, but rather how these systems will develop. On the one hand, the NUA calls for revising and reinvigorating current measures against pollution and congestion. The effects and limitations of these legal tools are well known. It is not particularly difficult to name a complete list of common approaches and examples in many countries with varying degrees of intensity, including prohibiting private vehicles entering city centres; congestion charges such as in London; Pigouvian taxes aimed at limiting or disincentivising the use of private cars; the promotion of non-fossil-fuel-driven vehicles; and transit regulations that seek to reduce the number of cars entering cities, including the complete ban on diesel cars in certain urban areas in Germany.6 These measures have often been introduced following lengthy legal battles, some of them still in progress. On the other hand, modern and sustainable urban mobility policymaking must address and finance infrastructure improvements while attending to at least three distinct but interconnected objectives: enhanced safety measures; viable infrastructure that encourages walking and cycling, thus enabling mobility alternatives; and the renewal of city planning to reshape or avoid models that encourage urban sprawl, thereby reducing the role of large-scale transportation in most

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citizens’ day-to-day lives. Finally, and closely related to planning and infrastructure policy choices and investment priorities, policymakers must reinforce and ameliorate mass transportation systems, as this can reduce pollution and stimulate social goals. Urban and infrastructure planning and the design of mass public transportation systems are thus always closely related.

Environmental and pollution threshold values and restrictions on the use of private vehicles One traditional, tested approach is to establish environmental and pollution threshold values for fossil-fuel-driven vehicles, different kinds of fiscal and regulatory incentives to foster the transition to other forms of mobility, such as electric cars, and partial bans on the use of some kinds of vehicles in certain cases. Although the areas most concerned with pollution are urban, these regulations are commonly set at a broader scale owing to market and competition issues. For instance, even if the PCA and the NUA both seek to establish threshold values for fossil-fuel-driven vehicles,7 as is the case in almost every country today,8 and transportation market regulation and the rules on the provision of transportation public services permit such limits,9 then these restrictions need to be established in a way that enables the normal trade of goods and products (i.e., cars and other vehicles) within the internal and common market, for instance in Europe. Therefore, these restrictions are typically set by higher bodies, such as at the European or member-state level. Recently enhanced regulatory frameworks that protect the environment and reduce pollution ease the task of urban regulators, affording them greater opportunities to introduce new limitations and even temporary or specific bans. For instance, the EU Air Quality Directive limits European member states legislating against bans determined by legitimate local authorities with respect to proportionality principles.10 In the same direction, EUCJ Case T-339/16 12 2018, Ville de Paris & Ville de Bruxelles & Madrid v. EU Commission, accepts the possibility of Low Emission Zones, but only for older vehicles, as these restrictions may not be applicable to newer vehicles that comply with state-of-the-art standards set by the European Commission to ensure their “tradability.”11 As a general rule, the greater the degree of harmonisation at higher levels and the more requirements come from European institutions, the less room exists for cities to maneuver. Nevertheless, this flexibility still exists to some extent. It is possible, for instance, to establish further restrictions in uses – or at least in some uses – even if those restrictions only apply when proportionate and do not create a full ban on use that would be equivalent to an exclusion from the market, which is neither possible nor compatible with market freedom when the product is within the standards that allow it to be tradable.12 More controversial has been the complete ban on forms of mobility in large urban areas, especially on old diesel vehicles.13 Indeed, such bans have already been approved by some German cities, affecting vehicles that are theoretically within current international trade agreements, EU, and national regulatory

Challenges of urban mobility regulation 177 thresholds.14 Some bans have been adopted through judicial decisions after citizens asked for remedies to high levels of pollution.15 Although the controversy remains ongoing, judicial authorities are accepting such remedies when proportional and restricted to urban areas, even if in some cases the final implementation of the bans has been delayed. Other cases, like the prohibition recently announced in Amsterdam, are similar, and there exist numerous examples across Europe, albeit generally delayed until 2030 to 2040.16 Nevertheless, in most big cities the final ban on diesel cars and other forms of highly pollutant mobility alternatives will follow legislative decisions taken at the national level. The room cities have to manoeuvre is thus limited to exceptional occurrences, such as drawing up specific areas that may allow for more restrictions within the proportionate uses of their capacities.

Congestion charges and other forms of disincentives Recent evolution in the legal frameworks of most countries have led to the introduction of a range of approaches on how to incentivise sustainable forms of transportation or disincentivise less desirable counterparts. Fiscal incentives, subsidies, tax deductions, and other kinds of incentives are now common in almost all modern legal systems. Pigouvian taxes are typical, rendering the use of fossil-fueldriven private vehicles more expensive and less attractive to consumers.17 These measures may be introduced and enforced in different ways, albeit generally by national rather than urban authorities. There is also room for additional measures to be taken by local governments. Thus, not only taxes but also the pricing of some city services may take each means of transportation’s sustainability into account. Across various countries, experiences in this regard are quite common: the establishment of Pigouvian taxes is a customarily used promotion tool, typically alongside direct incentives to electric vehicles in the form of tax deductions and other incentives such as free parking in restricted areas or the possibility of entering parts of the city from which traditional vehicles are banned.18 From the same perspective, one of the most interesting developments in recent years has been the implementation of congestion charges in a growing number of major cities, following the example of London in 2003.19 After almost two decades of experience, we are aware of the measure’s main effects on the environment and congestion. The London congestion charge has been an indisputable success, as demonstrated by the fact that it has been extended to cover a greater area, the charge has increased, and the policy seems highly unlikely to be reversed.20 Further evidence is the fact that a growing number of cities are copying the scheme. Most notably, Stockholm introduced a similar system in 2007 and extended it in 2016,21 while Milan established an eighteen-month pilot program in 2012 and made it permanent in 2013.22 Other schemes have been proposed or tested in American and Asian cities, including Singapore and Hong Kong.23 Proposals were also made in cities such as Edinburgh (2002)24 and New York City (2007),25 but were rejected amidst political turmoil and media opposition. These cases arguably came too early, but the idea has since gained traction,

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with Beijing officials announcing a project to establish congestion charges starting in 2020,26 while a new congestion pricing proposal is currently under discussion in San Francisco,27 and New York has approved its own plan to be implemented in 2021.28 It is hence difficult to deny that congestion charges are becoming increasingly prevalent across the world. They are one of the most important tools in the hands of local authorities to control congestion, reduce pollution, raise money to improve public mass transportation systems, and ultimately to work towards the NUA’s sustainable mobility goals.29 Two decades of London’s congestion charge also afford us a better understanding of the functioning and basic effects of such measures. Based on the London experience, we know that such charges are far more effective at lowering levels of congestion or stimulating transition to public transportation than collecting revenue to be invested in improving public mass transportation systems.30 Similar results have been attained in other cities across the world.31 We also know that few legal controversies have emerged when implementing congestion charge systems. In some cases, including London, a series of legal challenges were made to the entire scheme or simply particular aspects.32 Some residents in the Westminster neighbourhood challenged the limits of the restricted area, but the final judicial decision allowed city planners to establish restricted areas within the scope of their discretionary powers as long as they were reasonable, proportional, and justified within the procedure.33 No property rights – in this case to property in land – under the protection of European and international treaties are a barrier as long as the regulation strikes a fair balance and allows for effective enjoyment. A different issue is whether a city can establish such a scheme by itself, if the various legal systems demand a legislative provision to limit fundamental rights in such a way. This was the case in London, but has also proved to be a typical conclusion in European law traditions.34 In such cases, jurisdiction issues may complicate the establishment of a congestion charge by requiring cooperation between local authorities and regional or state legislative powers. Nevertheless, this requirement is not an insurmountable hurdle, as previous experience shows. It is simply another example of the importance of metropolitan and regional coordination in urban mobility policies.

Urban planning and decisions regarding the use of public space within cities Another fundamental issue in developing the NUA’s strategic approaches within the jurisdiction of local authorities pertains to decisions regarding the use of urban public space.35 The most pervasive conflict pertains to space for urban public transportation systems, pedestrian mobility, and private mobility. It is impossible to establish a general empirical or theoretical approach to the appropriate distribution of public space, due to the diversity of cities in terms of size, population density, urban structure, levels of economic development, quantity of cars, and so forth.36 Even focusing on a specific city, it is difficult to determine a fair balance: social values and political preferences may differ contingent on

Challenges of urban mobility regulation 179 characteristics of each city and society. This is the main reason why these decisions tend to be anchored at the local level, regardless of the country in question, because of the democratic issue at the core of local autonomy.37 As long as different strategies are viable and these political choices are inherently local, decisions should be made by local governments.38 Nevertheless, it is also possible to assess the impact of different strategies, as well as to collect the results of previous experience to show that some strategies are generally more in accordance with the NUA’s prescriptions than others. For instance, the distribution of public space has traditionally allocated far more space to private mobility by fossil-fuel-driven cars than to public transportation, pedestrian areas, or secured infrastructure to be used by other more fragile and sustainable vehicles such as bicycles and electric mobility devices. This allocation of public space tends to promote private mobility through the car at pedestrians’ expense to an unsustainable extent.39 Most public policies derived from the NUA’s new paradigm require a significant reduction of space for private cars. City centres should be steadily recovered for pedestrian use, and mass transportation systems must claim all the space they require in order to be efficient.40 As steps in this direction are undertaken in a number of cities, we can verify their effects on citizens’ behavior and pollution reduction as well as their benefits for the environment and public transport alike. These decisions can of course be reinforced, particularly in big cities, by other measures like Pigouvian environmental taxes and congestion charges as already discussed. It is important not to lose sight of empirical evidence on the importance of safe infrastructure for pedestrians and other forms of mobility, such as cycling. Investing in creating a broad and efficient segregated network of bicycle lanes or ameliorating pedestrians’ safety and comfort dramatically increases their use.41 The NUA highlights the necessity of offering mobility alternatives to groups such as women, older people, and disabled persons.42 The allocation of urban space plays a significant role in important decisions pertaining to new forms of private shared mobility. Congestion issues may arise following the success of shared mobility schemes and the digital platforms that render them easier and more efficient. If such renewed efficiency increases the use of certain forms of private mobility, congestion may increase, thus making convenient a reallocation of public space that impeaches this outcome. Alternatives are possible, from restrictions in urban areas most affected by the problem, to pricing their use where such services require a specific and intensive use of public streets, as is generally the case. Again, such decisions are typically locally rooted.43

Mass public transportation system improvements and the role of public services Decisions regarding mass public transportation improvements and the evolution of public services’ traditional role in the provision of mobility alternatives for urban areas are impossible to neglect. As the NUA shows, this may prove the

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most important and challenging duty owing to the substantial financial effort required.44 Traditionally, public transport has been provided by local and regional governments, depending on the scale of urban areas, also in the developing world (for the NUA this cooperation is considered to be essential).45 In many cities and countries, mass transportation systems are complemented by some public organisation of traditional mobility services provided by private actors such as taxi services.46 It is also possible for public transportation systems to be operated by private agents rather than public institutions.47 Eventually it will also be possible to offer public funding to private operators in order to achieve public service goals, as EU legislation allows.48 The NUA does not alter the current paradigm regarding mass public transportation systems or taxi regulations. It merely states the necessity of investing and improving these systems, offering better mobility alternatives to citizens and vulnerable groups, and setting out a path towards the progressive decarbonisation of mass transportation.49 How this might be achieved is not a pressing legal issue: legal regulations and local government responsibilities do not differ from traditional counterparts. Pollution reduction, energy efficiency, and decarbonisation as well as basic strategic decisions regarding the kind of public transportation systems to be implemented or improved in each case are dependent on financial and technical considerations rather than legal challenges. However, local government decisions pertaining to public transport may in some cases be affected by legal considerations. For instance, owing to the fact that legal instruments such as the NUA state the necessity of improving public mobility alternatives available to all, we can detect a legal mandate that enables some restrictions on private mobility alternatives if cannibalisation of public mass transportation systems puts them at risk.50 Recent studies have noted this issue in urban areas, and especially in sprawling cities, although results remain inconclusive.51 In any case, legal instruments inspired by the NUA clearly render it possible to take these elements into consideration when regulating the provision of alternative private mobility services. Even if such a regulation leads to some restrictions, that would also be compatible with the Transportation Regulation or the Services Directive within the EU: both allow restrictions to be established in pursuing goals of general interest, as it may be considered without any doubt the protection of mass public transportation systems. Things are different with the traditional regulation of the second classic pillar of public transportation offered to the general public or heavily regulated transportation systems: taxis and their equivalents. Such transportation systems have traditionally been seen by local governments as part of public transportation. Public regulations have been established to guarantee more or less identical public service essential goals: service continuity and quality, consumer protection and equality of users. Indeed, it was traditionally thought that transportation markets, and especially urban transportation markets, had such significant information asymmetries that they would create major market failures.52 Such regulations are those most significantly challenged by technological change and economic innovation in transportation markets. Shared mobility and digital platforms blur

Challenges of urban mobility regulation 181 the boundaries between what may be considered a public service and the simple offer of private mobility services. In sum, this may render redundant a regulation aimed at preventing theoretical market failures that may not pose problems anymore because of the impact of new technologies and the reduction in transaction costs.

Local governments’ regulatory powers and the challenges of regulating new private “shared transportation” systems Every improvement analysed herein has a clear relationship with the main guidelines of the NUA.53 Of the list of new policy guidelines and trends explored so far, none poses a significant constraint or challenge to the traditional approach to urban mobility made by local governments in previous decades, regardless of actual and diverse political preferences. Major disruptions in how we organise private transportation, however, may pose a very different kind of challenge. The sharing economy has already created a major disruption in many markets, as is also true in the provision of private transportation services.54 Increased economic efficiency and better environmental efficiency are of particular importance here, as they affect the decisions made by local governments regarding whether to promote public transportation systems or enable private alternatives instead. The latter may be a mere output of today’s better technologies or a consequence of reducing the waste and idle capacity produced by the more intensive use of each vehicle, given that a shared car will be used more than a traditional private one. Sharing is especially effective because the more complete a network, the better it will optimise idle capacity.55 Another effect of the emergence and success of sharing services is the pivotal importance of a new actor: digital platforms that are in charge of the enhanced brokerage behind the success of “shared transportation” systems, whether ride-sharing services such as Uber and Lyft or car-sharing platforms such as Blablacar.56 This new actor threatens or at least blurs the traditional hegemonic position of public authorities when providing efficient and affordable transportation services, and such authorities must accept this change, rather than seek to hinder a process that has more benefits than disadvantages. We can define the sharing economy in broad terms: as transactions that take profit from pre-existing resources that were not being used to the maximum degree owing to inherent difficulties in matching capacity and necessities or supply and demand.57 Some of these difficulties have been sorted out by new technological developments that have enhanced access to both sides of any transaction and the information available about possible counter-parties through digital intermediation platforms.58 The implications for urban mobility markets are clear. On the one hand, technology is now able to prevent some of the traditional market failures that justified public services or intense public interventions in the realm of urban mobility.59 On the other hand, increased efficiency in matching supply and demand can render the provision of private urban mobility services

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more profitable.60 Where network externalities are well known and extensively documented, as is true of transportation markets, efficient platform brokerage is merely a powerful catalyst.61 The sharing economy is also linked to the emergence of new social trends that are less anchored to an ownership mentality.62 Much has been written for instance about the collaborative nature of exchanges fuelled by sharing economy platforms, their positive cultural aspects,63 and their capacity to trigger substantial transformations in the global economy from radically optimistic visions.64 Praise has often been given to the supposed non-commercial approach involved.65 This may result in an increase in the popularity of car-sharing schemes or equivalent platforms focused on sharing mobility devices, as well as a reduction in the global number of vehicles used in our cities. In the end, the critical factor that explains what we are seeing is that digital brokerage using Internet platforms is reshaping how we exchange goods and services in a far more effective way. Accurate digital brokers are not only permitting sharing activities in which non-professionals are involved, but also enabling the emergence of new commercial activities that are explicitly focused on making profit that cannot easily be placed in the category of collaborative activities.66 Therefore, car-sharing and the challenges it poses to traditional urban mobility regulation are not quite different from ride-sharing platforms. Nevertheless, it is true that car-sharing platforms may be used, promoted, or even directly established by local authorities as an additional tool to offer mobility solutions in urban areas, whereas ride-sharing systems owned by public powers, even if theoretically possible, are less common. A similar pattern can be seen in the emergence of new market niches and the inevitable consolidation of business-oriented brokerage platforms. The challenges posed by digital platforms in mobility markets have thus followed a well-established pattern. First, tax issues have arisen in these market niches, but they may be circumvented when exchanges are made at a smaller scale.67 Once they have grown, governments must tax sharing-related activities and business,68 although they could also try to make fiscal burdens not so heavy as in other fields.69 The market of ride-sharing platforms can already be deemed mature. This is why we are now in a second phase, in which worker protection and regulations extract added value from the mobility sharing economy, while preventing associated social risks that appear only when sharing activity reaches a certain scale.70 Many supporters of these phenomena have explained the environmental advantages of replacing individual property ownership of certain goods with common shared use,71 thereby reducing idle capacity, a key feature of the sharing economy in accordance with the NUA and the PCA.72 However, if we focus only on urban mobility, a net decrease in the total number of vehicles used to make the same number of services will not substantially affect pollution issues or congestion problems in populated cities. It has to be said that congestion was not considered to be a major problem in itself until recently, but the NUA correctly considers it a main concern.73 This is despite the fact that the reduction in the final number of manufactured cars required to provide the service will be a clear global

Challenges of urban mobility regulation 183 environmental gain. In fact, if greater efficiency and correlative reduction of costs leads to a significant increase in the total number of mobility services provided by private vehicles, two effects should be feared. First, congestion and hence pollution may be exacerbated, with cities such as New York City already experimenting with forcing local authorities to establish a cap on the total number of authorized ride-sharing vehicles.74 And second, increased efficiency may entice some old public transport users to alter their mobility routines, challenging the public transportation system if the critical mass of users becomes jeopardised.75 When we analyse the initial responses of regulatory bodies across the world, we can see that these concerns are always present. However, we also recognise some deviations. For instance, countries with a more traditionally liberal approach to taxis have easily adopted ride-share-friendly regulations, such as overtime in many major cities in the United States76 and Europe, especially London.77 A similar trend can be detected in countries where, despite having a tradition of public service regulation for taxis, the consistently poor quality of the service coupled with security issues or problems with the previous and fair determination of services’ price have paved the way for the rapid popularity of ride-sharing services.78 On the other hand, a major issue is reconciling the benefits of these offers with the major disruptions they create in previously regulated public service urban transportation markets. This has been the case at the Organisation for Economic Co-operation and Development (OECD) level79 as well as in countries such as Germany,80 Spain,81 and France,82 and the EU as a whole.83 Not without resistance, competition has overridden a very restrictive regulation in countries like France,84 and the trend seems also to be set in Germany.85 Better regulations require legal experimentalism and data to define approaches to extracting potential added value.86

Shared transportation and its effects on traditional public transportation markets From an economic perspective, most of the traditional purposes of public regulation of private mobility services made by local authorities are now out of date, as they represented regulatory responses to market failures from informational asymmetries that were risky for consumers that do not exist anymore. They were also a regulatory fix to skimming temptations that might produce scarcity in some places or times, and that in most cases have been significantly reduced, if not completely removed, by digital brokerage, sharing platforms, and new forms of ride-sharing and car-sharing. The stricter the regulation created in the past to solve those problems, the more challenging the situation is today. Ultimately, if we appeal to the traditional “laws of public service” enounced by French scholar Louis Rolland in the mid-thirties of the twentieth century that had guided for decades public service regulations in most continental European countries87 and their underpinning and intrinsic logic, we may draw some interesting conclusions. For example, it is probably no longer the case that in order to guarantee profitability and continuity of urban mobility services, a regulation that

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prevents competition is required. An alternative and more liberal model, fueled by sharing platforms, has been set out with the more limited goal of guaranteeing minimum efficiency and sufficient profitability without major risks to continuity.88 This approach has proved its merits without creating managerial or other mobility problems in numerous cities around the world. Furthermore, the quality and adaptability of the service to new social and economic needs appear to be easy to satisfy through the simple market regulation of transportation services that impose legal requirements on their conduct.89 In fact, such regulations can apply highly demanding requirements related to vehicle features and their sustainability, such as, for instance, asking for free-emissions vehicles from urban mobility services. There are still some doubts regarding whether the neutrality principle and equality of users, which is traditionally linked to the public service logic, can be respected by services offered throughout digital platforms and their market logic in terms of prices.90 Nevertheless, traditional public service schemes have also ultimately accepted price discrimination according to moments of greater or lesser demand, in order to achieve greater economic efficiency.91 It does not seem, then, that we are facing an insurmountable theoretical obstacle. For example, a simple minimum and maximum cap normatively for these services to avoid discrimination can attain traditional regulatory goals with no further restrictions needed. From this observation, it would make sense to adopt a liberal approach, not only from an economic perspective but also from the logic of public service. Market forces are nowadays perfectly able to provide the required services respecting regulatory and technical prescriptions set up by public authorities to ensure the quality of the service and environmental sustainability, as well as, if it is considered to be necessary, price caps. Moreover, there is an element of social justice involved in favour of this latter option: the best distribution of income derived from productive activities occurs when a sector is open to competition. This is because rents go to those who work more effectively, thereby generating clear social benefits. This can be compared with what happens with closed sectors, where rents go to those who were already there or managed to enter it and later remain armoured from competition.92 As a whole, these elements accord with the NUA’s goals, because they use technology to promote urban mobility, economic efficiency, social fairness, and potentially major gains in environmental sustainability.93 Unsurprisingly, even countries, most of them in continental Europe, that today keep up public service traditions, with separated markets and different regulations for taxis and ride-share platforms, where regulatory burdens for the latest are still common, are changing their position little by little.94 A very interesting example is the regulatory policy document recently issued by the German government, which states a clear intention to eliminate or at least reduce regulatory burdens such as quotas that only allow a small number of shared vehicles, prohibitions on contracting those services through digital apps, or regulations that ban the service if not contracted well in advance.95 On the other hand, data shows that as a consequence of greater efficiency, the new model attracts more actors to the market, which means more private vehicles

Challenges of urban mobility regulation 185 in our cities. Both the complete liberalisation of the markets and regulations with similar results, a dual regime with no effective quotas for ride-sharing and no significant regulatory burdens to prevent competition, yield greater efficiency, but they do so by provoking other types of problems and negative externalities that are relevant to any urban environment and must therefore be negotiated by local authorities.96 For example, urban space, which is limited, suffers from significant congestion problems when these platforms are developed.97 Some studies suggest that this is precisely what has happened in cities such as San Francisco98 and New York,99 where the model is most developed and where its effects can be analyzed in the medium term, rather than merely by their immediate consequences. These problems of congestion also lead to other negative externalities: more pollution, greater pressure from a larger number of users against more desirable modes of urban transport modes, such as walking, cycling, or public transport, which can be negatively affected by the transfer of users to tourism vehicles that compete with them for the urban space. New York City’s decision to cap new ride-hail drivers is a significant move, designed not only to assess the problem but also to prevent continued negative effects.100 It is also interesting to note that some ride-sharing companies, like Uber, have challenged this decision.101 The final judicial decision on whether such moratoria or caps can be implemented by local authorities will inform us of any trends. In addition, an increase in the efficiency of these modes of urban transport, when translated to final users, may imply greater competition among public transportation systems and therefore compromise their critical mass. It is also worth remembering that public transport is essential in a modern city, especially to offer mobility alternatives to the least-favoured social groups, as considered by the NUA in Paragraph 14, resolving to provide “equal access for all to physical and social infrastructure and basic services.”102 For public transportation, most of the economic effects of sharing networks also apply; just as the effective density of the network is key to allowing the platform to be competitive, with public transportation systems the denser the network, the more the connections will become actual transactions.103 Therefore, for the risk of losing some “transactions,” users and connections must not be understated: once a threshold is reached, the mere existence of the whole network as a viable alternative may become endangered. In short, there exist broad considerations of efficiency that include price considerations as well as externalities, environmental issues, congestion problems, and the effects and social implications on public transportation, which may downplay any enthusiasm for a complete regulatory free pass to private mobility sharing platforms. In this sense, local governments’ powers over the use of public space and the general organisation of urban mobility, as well as the importance of integral planning to give priority to modal alternatives that are more sustainable and respectful of the environment and rights of citizens, can end up triggering policies that enable the implementation of restrictions or strict emission requirements, even quotas for vehicles not 100% emissions-free, that should be autonomously evaluated by local authorities,104 also thus allowing local experimentalism.105

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Final reflections Any coherent global strategy adopted by a local government willing to comply with the NUA has to adopt regulations to promote other kinds of shared mobility beyond ride-sharing and car-sharing platforms. Numerous market opportunities will emerge related to bike-sharing – electric or not – and other mobility devices. In order to promote but also control them, not only is suitable infrastructure necessary to render their widespread use feasible, but also decisions need to be made regarding the use of public space and how transit can be ordered. Most of these decisions, beyond the very basic legal framework that may already exist at the national level, will be made by local authorities. As a result, local policies may differ considerably, as the circumstances, environment, and particularities of each city are diverse by nature. The leeway they enjoy offers substantial information regarding the effects of different strategies but is also an expression of diverse political preferences and values, linked to an ongoing crucial social debate about how to use public space and how to better organise public mobility in one of the most demanding, disputed, but thrilling sites of cohabitation: our cities.

Notes 1 Research for this chapter has been funded by the Spanish Government (Research project DER2015-67613-R “The regulation of sharing economy”) and by the Valencian Government (Research Project PROMETEU/2017/064 “The regulation of digital transformation and the sharing economy”). 2 G.A. Res 71/256*, annex, New Urban Agenda (Dec. 23, 2016), ¶13(a) [hereinafter New Urban Agenda]. 3 Id. ¶¶ 113–17. 4 Id. ¶¶ 13(f), 34, 36, 50, 54, 113. 5 Federico Caprotti, et al., The New Urban Agenda: Key Opportunities and Challenges for Policy and Practice, 10 URBAN RESEARCH & PRACTICE 367, 369–70 (2017); Juli Ponce Solé, El Derecho a la Ciudad, Gobernanza y la Nueva Agenda Urbana, EL DERECHO, LA CIUDAD Y LA VIVIENDA EN LA NUEVA CONCEPCIÓN DEL DESARROLLO URBANO 115, 125–26 (Atelier 2019). 6 For example, see the comprehensive list of possible future solutions in the industrial strategy paper produced by the United Kingdom Department for Transport, FUTURE OF MOBILITY: URBAN STRATEGY. MOVING BRITAIN AHEAD 52–67 (2019), https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/786654/future-of-mobility-strategy.pdf. 7 See New Urban Agenda, supra note 2, ¶¶ 34, 116. 8 See Council Directive 2007/46, 2007 O.J. (L 263) (EC) and Commission Regulation No. 692/2008 (July 18, 2008) (For instance, for the European Union, as regards innovative technologies for reducing CO2 emissions from light commercial vehicles and its amendments, Annex I, Annex II). 9 Commission Regulation 1370/2007 of Oct. 23, 2007, On Public Passenger Transport Services by Rail and by Road and Repealing Council Regulations 1191/69/EEC and 1107/70/EEC, 2007 O.J. (L. 314). 10 EU Air Quality Directive 2008/50/EC of 21 May 2008 on Ambient Air Quality and Cleaner Air for Europe establishes specific thresholds (Annex I to Annex II) that have allowed the European Commission to act against

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member states such as Germany, France, Hungary, Italy, the United Kingdom, and Romania for not providing a regulation in accordance with the established limits and also against Spain after recent changes and amendments made to previous plans to reduce air pollution in cities as Madrid. See Jaime Doreste, A La Comisión Europea se le Ha Acabado la Paciencia con España, AGENDA PÚBLICA (July 25, 2019), http://agendapublica.elpais. com/a-la-comision-europea-se-le-ha-acabado-la-paciencia-con-espana/. Joined Cases T-339, 353 & 391/16, Ville de Paris et al. v. European Union Comm’n, 2018 E.C.L.I. 927, ¶¶ 67–85. As a recent example, the Low Emission Zone in Brussels was backed by the Belgian Constitutional Court in a February 28, 2019 decision, which considered there to be no property right issue, and that the decision would not impair the right of the state to enforce such laws because there was a general interest. Cour Counstitutionnelle [CC] [Constitutional Court] decision no 37/2019, Feb. 28, 2019, MONITEUR BELGE [MB] [Official Gazette of Belgium], Mar. 25, 2019, 6806 (Belg.). The public debate has been specially important in Germany, where the Federal Government was forced to react and gave federal guidelines. See BUNDESMINISTERIUM FÜR UMWELT, NATURSCHUTZ UND NUKEARE SICHERHIET, KONZEPT FÜR SAUBERE LUFT UND DIE SICHERUNG DER INDIVIDUELLEN MOBILITÄT IN UNSEREN STÄDTEN (2018), www.bmu.de/fileadmin/Daten_BMU/Download_PDF/Luft/konzept_ diesel_bf.pdf. For a chronological list of decisions and regulations, see Chronologie zu Diesel und Luftreinhaltung, BUNDESMINISTERIUM FÜR UMWELT, NATURSCHUTZ UND NUKEARE SICHERHIET, www.bmu.de/themen/luft-laerm-verkehr/luftreinhaltung/ diesel-und-luftreinhaltung/ (last visited June 2019). An assessment of some experimental bans in city centers in some German cities and their effects in air pollution has been made by Cyrys, Gu & Soentgen, Analyse der Wirksamkeit von Umweltzonen in drei deutschen Städten: Berlin, München und Augsburg. Endbericht, 46 UMWELTBUNDESAMT (2017). After some previous decisions at the regional level in that direction in some German Länder such as Nordrhein-Westfalen or Baden-Wüsttenberg, this possibility has been upheld by the Federal Administrative Court. BVerwG, Feb. 27, 2018, 7 C 26.16, www.bverwg.de/270218U7C26.16.0. BVerwG, Feb. 27, 2018, 7 C 30.17, www.bverwg.de/270218U7C30.17.0. Bart Meijer, City of Amsterdam to Ban Polluting Cars from 2030, REUTERS (May 2, 2019), www.reuters.com/article/us-netherlands-pollution-amsterdam/ city-of-amsterdam-to-ban-polluting-cars-from-2030-idUSKCN1S81XV. Roxana J. Javid, et al., Selection of CO2 Mitigation Strategies for Road Transportation in the United States Using Multi-Criteria Approach, 38 RENEWABLE AND SUSTAINABLE ENERGY REV. 960, 960–72 (2014). Christopher R. Knittel & Ryan Sandler, The Welfare Impact of Indirect Pigouvian Taxation: Evidence from Transportation 20–23 (NBER, Working Paper No. 18849, 2013); Jonathan S. Masur & Eric A. Posner, Toward a Pigouvian State, 164 U. PENN. L. REV. 108 (2015). See also Iñaki Bilbao Estrada, Transporte Colaborativo, Medioambiente y Beneficios Fiscales: Especial Referencia al Ordenamiento Jurídico Español, LA REGULACIÓN DEL TRANSPORTE COLABORATIVO 281, 297–99 (Andrés Boix Palop, Ana María de la Encarnación & Gabriel Doménech Pascual eds., 2017). TRANSPORT FOR LONDON, THE GREATER LONDON (CENTRAL ZONE) CONGESTION CHARGING ORDER 2001 (2002). London’s implementation was rendered possible by the Greater London Authority Act 1999 and the Greater London Congestion Charging Order of 2001. For a description of this process, see STEPHEN GLAISTER & DANIEL J. GRAHAM, IEA, PRICING OUR ROADS: VISION AND REALITY (2004).

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20 For a first evaluation of the results of the London congestion charge, see Georgina Santos & Gordon Fraser, Road Pricing: Lessons from London, 21 ECONOMIC POLICY 264 (2006). 21 Jonas Eliasson, Expected and Unexpected in the Stockholm Trial, in CONGESTION TAXES IN CITY TRAFFIC: LESSONS LEARNT FROM THE STOCKHOLM TRIAL 224–31 (Anders Gullberg & Karolina Isaksson eds., 2009). 22 Edoardo Croci & Aldo Ravazzi Douvan, Urban Road Pricing: A Comparative Study on the Experiences of London, Stockholm and Milan (IEFE, Working Paper No. 85, 2016). 23 TRI-STATE TRANSP. CAMPAIGN, ROAD PRICING IN LONDON, STOCKHOLM AND SINGAPORE. A WAY FORWARD FOR NEW YORK CITY 14–17 (2017). See also Md. Mahmud Hassan Talukdar, Prospect of Electronic Road Pricing in Hong Kong, 4 INT’L J. ARCHITECTURE AND URB. DEV. 27 (2014). 24 Ziyuan Gu, et al., Congestion Pricing Practices and Public Acceptance: A Review of Evidence, 6 CASES STUD. ON TRANSPORT POL’Y 94, 94–101 (2018). 25 For an analysis of the defeated congestion pricing initiative for New York City, see Sam Schwartz, et al., A Comprehensive Transportation Policy for the 21st Century: A Case Study of Congestion Pricing in New York City, 17 N.Y.U. ENVTL L.J. 580 (2008). See also Jonathan R. Peters & Cameron Gordon, Results Not Guaranteed: A Tale of Road Pricing in New York and London, 16 J. URB. TECH. 113 (2009). 26 Xin Li, et al., Acceptability of Beijing Congestion Charging from a Business Perspective, 46 TRANSPORTATION 753, 753–76 (2019). 27 S.F. CTY. TRANSP. AUTH., SAN FRANCISCO: MOBILITY, ACCESS AND PRICING STUDY (2010). 28 FIX NYC ADVISORY PANEL REPORT 6 (2018). 29 See New Urban Agenda, supra note 2, ¶¶ 34, 54, 115, 117. 30 Michael Fehling, Movilidad Sostenible en Áreas Urbanas: Conceptos e Instrumentos, in CIUDAD Y MOVILIDAD: LA REGULACIÓN DE LA MOVILIDAD URBANA SOSTENIBLE 107, 121–23 (Andrés Boix Palop & Reyes Marzal Raga eds., 2014). 31 ED PIKE, INT’L COUNCIL ON CLEAN TRANSP., CONGESTION CHARGING: CHALLENGES AND OPPORTUNITIES (2010); Croci & Douvan, supra note 22; TRI-STATE TRANSP. CAMPAIGN, supra note 23, at 14–17. 32 Matthew Humphreys, Congestion Charging: R (Westminster City Council, Preece and Adamson) v Mayor of London, 2002. 5 ENVTL L. REV. 134, 134–40 (2003). 33 See Fehling, supra note 30, at 121. 34 Id. 35 See New Urban Agenda, supra note 2, ¶¶ 98, 117–18. 36 Samuel Nello-Deakin, Is There Such a Thing as a ‘Fair’ Distribution of Road Space?, 24 J. URB. DESIGN 698 (2019). 37 Richard Briffault, Local Autonomy and Constitutional Law, LAW BETWEEN BUILDINGS 9–12 (Nisha Mistry & Nestor M. Davidson eds., 2017). 38 Andrés Boix Palop, La Movilidad Urbana Sostenible en la Ley Valenciana de Movilidad, in CIUDAD Y MOVILIDAD: LA REGULACIÓN DE LA MOVILIDAD URBANA SOSTENIBLE 177, 177–98 (2014). 39 Nello-Deakin, supra note 36. 40 See New Urban Agenda, supra note 2, ¶¶ 34, 36, 50, 113–14. 41 Nikhil Soni & Neetishree Soni, Benefits of Pedestrianization and Warrants to Pedestrianize an Area, 57 LAND USE POL’Y 139, 139–50 (2016). 42 See New Urban Agenda, supra note 2, ¶¶ 114, 121. 43 Gabriel Doménech Pascual, Economía Colaborativa y Administración Local, ANUARIO DEL GOBIERNO LOCAL 35–66 (2015). 44 See New Urban Agenda, supra note 2, ¶¶ 6, 13, 118.

Challenges of urban mobility regulation 189 45 Eloísa Carbonell Porras & Tomás Cano Campos, Los Transportes Urbanos, in TRATADO DE DERECHO MUNICIPAL 1671, 1682–90 (2003); Ralph Gakenheimer, Land Use and Transport in Rapidly Motorizing Cities: Contexts of Controversy, in URBAN TRANSPORT IN THE DEVELOPING WORLD. A HANDBOOK OF POLICY AND PRACTICE 40, 43–47 (2011). For the importance of this cooperation between different levels of government and the importance of regional and local decisions, see New Urban Agenda, supra note 2, ¶ 118. 46 M. E. Beesley, Regulation of Taxis, 83 ECON. J. 150, 151–67 (1973). 47 Lorenz Wachinger, Finanzierung Öffentlicher Dienstlesitungen und Europäisches Wettbewerbsrecht: Der beihilfenrechtliche Prüfmaßstab nach dem EuGH-Urteil in der Rechtssache “Atmark Trans”, 27 ZÖGU/J. FOR PUB. AND NONPROFIT SERV. 56 (2004); Stéphane Bracq, Droit Communautaire Materiel et Qualification Juridique: Le Financement des Obligations de Service Public au Coeur de la Tourmente. (a Propos de la Decision: CJCE 24 juill. 2003, Altmark Trans GmbH, aff. C-280/00), 40 RÉVUE TRIMESTRELLE DE DROIT EUROPÉEN 33 (2004). 48 Commission Regulation 1370/2007, supra note 9, arts. 3–6. 49 See New Urban Agenda, supra note 2, ¶ 13(f). 50 See Id. ¶¶ 36, 118. 51 For instance, recent studies show a cannibalization of 30 million tickets per year for public transportation services in the metropolitan area of Toronto; see YEMI ADEDIJI, LIAM DONALDSON & MURTAZA HAIDER, RYERSON URBAN ANALYTICS INST., REGULATING VEHICLES-FOR-HIRE IN TORONTO. A REVIEW OF THE REGULATORY FRAMEWORKS (2009). On the other hand, some studies show that services like Uber’s may also be a complement for public transportation systems in some cases, but available evidence at this moment is consistent with the danger of cannibalization in sprawling cities and areas with a demand for public transportation, which is nearby to its required critical mass. See Jonathan D. Hall, Craig Palsson and Josep Price, Is Uber a Substitute or Complement for Public Transit?, 108 J. URB. ECON. 36, 36–38 (2018). On possible complementary effects of ridesharing and ride-splitting, see Juan José Montero & Jorge Risueño, El Impacto del Transporte Colaborativo en el Transporte Público Tradicional, in LA REGULACIÓN DEL TRANSPORTE COLABORATIVO 93, 104–11 (Andrés Boix Palop, et al. eds., 2017). 52 Regulation, deregulation, and reregulation of taxi markets in American cities provide a very interesting example of how necessary regulation was within the traditional technological paradigm, as shown by Paul Stephen Dempsey, Taxi Industry Regulation, Deregulation, and Reregulation: The Paradox of Market Failure, 24 TRANSP. L. J. 102–14 (1996). 53 See New Urban Agenda, supra note 2, ¶ 66. 54 Gabriel Doménech Pascual, La Regulación de la Economía Colaborativa: El Caso Uber Contra el Taxi, 175–76 CEF LEGAL 61–104 (2015). 55 GEOFFREY G. PARKER, ET AL., PLATFORM REVOLUTION: HOW NETWORKED MARKETS ARE TRANSFORMING THE ECONOMY AND HOW TO MAKE THEM WORK FOR YOU 21–33 (2016). 56 Katrina M. Wyman, Taxi Regulation in the Age of Uber, 20 N.Y.U. J. LEGIS. AND PUB. POL’Y. 1, 9–15 (2017). 57 RACHEL BOTSMAN & ROO ROGERS, WHAT’S MINE IS YOURS: HOW COLLABORATIVE CONSUMPTION IS CHANGING THE WAY WE LIVE 67–71 (2010). 58 See PARKER, ET AL., supra note 55, at 62–63; Orly Lobel, Coase and the Platform Economy, in THE CAMBRIDGE HANDBOOK OF THE SHARING ECONOMY 67, 71–74 (Nestor M. Davidson, et al. eds., 2018). 59 Wyman, supra note 56, at 32–49. 60 Doménech Pascual, supra note 54, at 67–69; Kellen Zale, Scale and the Sharing Economy, in THE CAMBRIDGE HANDBOOK OF THE LAW OF THE SHARING ECONOMY 38, 39–44 (Nestor M. Davidson, et al. eds., 2018).

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61 Nicholas Economides, The Economics of Networks, 14 INT’L J. IND. ORG. 673, 673–99 (1996). 62 BOTSMAN & ROGERS, supra note 57, at 97–108. 63 PHILIPPE AIGRAIN, SHARING CULTURE AND THE ECONOMY IN THE INTERNET AGE 27–43 (2012). 64 JEREMY RIFKIN, ZERO MARGINAL COST SOCIETY: THE INTERNET OF THINGS, THE COLLABORATIVE COMMONS, AND THE ECLIPSE OF CAPITALISM 1–25 (2014). 65 BOTSMAN & ROGERS, supra note 57, at 60–64. 66 Rashmi Dyal-Chand, Regulating Sharing: The Sharing Economy as an Alternative Capitalist System, 90 TUL. L. REV. 241, 251–59 (2015); Aurélien Acquier, Uberization Meets Organizational Theory, in THE CAMBRIDGE HANDBOOK OF THE LAW OF THE SHARING ECONOMY 13, 15–17 (Nestor M. Davidson, et al. eds., 2018). 67 Ester Machancoses, La Fiscalidad del Transporte Colaborativo: Clasificación de los Modelos y Sus Efectos Jurídicos Desde la Óptica Tributaria, in LA REGULACIÓN DEL TRANSPORTE COLABORATIVO 223, 271–75 (Thomson Reuters Aranzadi ed., 2017). 68 J.M. Leaphart, Sharing Solutions?: An Analysis of Taxing the Sharing Economy in the United States and Europe, 91 TUL. L. REV. 189–215 (2016). 69 Debbie Wosskow, UNLOCKING THE SHARING ECONOMY (2014), www.gov.uk/ government/uploads/system/uploads/attachment_data/file/378291/bis14-1227-unlocking-the-sharing-economy-an-independent-review.pdf. 70 Adrian Todolí Signes, El Impacto de la “Uber Economy” en las Relaciones Laborales: Los Efectos de las Plataformas Virtuales en el Contrato de Trabajo, 3 IUSLABOR 1, 11–25 (2015). 71 See RIFKIN, supra note 64, at 273–75. 72 Russell Belk, Why Not Share Rather Than Own?, 611 ANNALS AM. ACAD. POL. & SOC. SCI. (2007). 73 See New Urban Agenda, supra note 2, ¶¶ 54, 118. See also JOHN BATES & DAVID LIEBLING, SPACED OUT: PERSPECTIVES ON PARKING POLICY, RAC FOUND. (2012). 74 Natasha Bhatia, The Second Avenue Subway’s Effect on Ride-Hail, Rideshare, and Taxi Usage in New York City, 2–4 (Nw. Univ. Working Paper 2019). 75 As in the Toronto case that we have already cited, see ADEDIJI, DONALDSON & HAIDER, supra note 51. 76 Wyman, supra note 56, at 2–100 (2017). 77 Alba Soriano Arnanz, Regulación Aplicable a Uber en Londres: La Pugna Entre los Black Cabs y las Empresas de Transporte Colaborativo, in LA REGULACIÓN DEL TRANSPORTE COLABORATIVO 343, 343–62 (Andrés Boix Palop, et al. eds., 2017). 78 For the Mexican case, see Yasmín Hernández Romero & Raúl Vicente Galindo Sosa, Modelos de Gestión del Servicio de Transporte UBER. ¿Quién Pierde y Quién Gana?, 19 ESPACIOS PÚBLICOS 167–68 (2016); Sigfried R.J. Eisenmeier, RideSharing Platforms in Developing Countries: Effects and Implications in Mexico City 6–7 (Pathways for Prosperity Comm’n Background Paper Series No. 3, 2018). 79 OECD, THE ECONOMIC AND SOCIAL ROLE OF INTERNET INTERMEDIARIES (2019), www.oecd.org/internet/ieconomy/44949023.pdf. 80 BUNDESKARTELLAMT, COMPETITION IN THE “NEW ECONOMY” (2001), www.bundes kartellamt.de/SharedDocs/Publikation/EN/Diskussions_Hintergrundpapiere/ Competition%20in%20the%20New%20Economy.pdf?__blob=publicationFile& v=2. 81 CNMC, RESULTADOS PRELIMINARIES: ESTUDIO SOBRE LOS NUEVOS MODELOS DE PRESTACIÓN DE SERVICIOS Y LA ECONOMÍA COLABORATIVA (2016), www.ascav. es/es/la-asociacion/biblioteca/item/download/33_adad1ca079fb08990acd 2b5df84b725f.html. 82 PHILIPPE BERBEZIEUX & CAMILLE HERODY, RAPPORT AU PREMIER MINISTRE SUR L’ÉCONOMIE COLLABORATIVE (2016), www.ladocumentationfrancaise.fr/var/ storage/rapports-publics/164000100.pdf.

Challenges of urban mobility regulation 191 83 SIMONA FRAZZANI, GABRIELE GRECA, & ALESSANDRO ZAMBONI, EUR. COMMISSION, STUDY ON PASSENGER TRANSPORT BY TAXI, HIRE CAR WITH DRIVER AND RIDESHARING IN THE EU (2016), https://ec.europa.eu/transport/sites/transport/files/201609-26-pax-transport-taxi-hirecar-w-driver-ridesharing-final-report.pdf. 84 Liliana Eskenazi, The French Taxi Case: Where Competition Meets – and Overrides – Regulation, 5 J. EUR. COMPETITION L. & PRAC. 551, 551–56 (2014). 85 Wissenschaftlicher Beirat beim Bundesminister für Verkehr und digitale Infrastruktur, Die Chancen der Digitalisierung im Taximarkt nutzen: Liberalisieren und Verbraucherschutz stärken, GUTACHTEN DES WISSENSCHAFTLICHEN BEIRATS BEIM BUNDESMINISTER FÜR VERKEHR UND DIGITALE INFRASTRUKTUR, 14–22 (2017), www.bmvi.de/SharedDocs/DE/Anlage/G/wissenschaftlicher-beirat-gutachten2017-3.html. 86 Sofia Ranchordás, Innovation Experimentalism in the Age of the Sharing Economy, 19 LEWIS & CLARK L. REV. 871, 908–20 (2015); Gabriel Doménech Pascual, Sharing Economy and Regulatory Strategies towards Legal Change, 7 EUR. J. RISK REG. 717, 717–27 (2016). 87 JACQUES CHEVALLIER, LE SERVICE PUBLIC 67–69 (1997). 88 Matthew D. Mitchell & Christopher Koopman, Taxis, Taxis and Governance in the Vehicle-For-Hire Industry, in THE CAMBRIDGE HANDBOOK OF THE LAW OF THE SHARING ECONOMY 78, 83–90 (Nestor M. Davidson, et al. eds., 2018). 89 Katrina M. Wyman, The Novelty of TNC Regulation, in THE CAMBRIDGE HANDBOOK OF THE LAW OF THE SHARING ECONOMY 129, 134–37 (Nestor M. Davidson, et al. eds., 2018). 90 Andrés Boix Palop, La Ordenación del Transporte “Colaborativo” Urbano, in LA REGULACIÓN DEL TRANSPORTE COLABORATIVO 119, 143–47 (Thomson Reuters Aranzadi ed., 2017). 91 Wyman, supra note 56, at 43–46; Doménech Pascual, supra note 54, at 89. 92 Christopher Koopman, et al., The Sharing Economy and Consumer Protection Regulation: The Case for Policy Change, 8 J. BUS., ENTREPRENEURSHIP AND L. 529, 537–38 (2015). 93 See New Urban Agenda, supra note 2, ¶¶ 34, 66. 94 Boix Palop, supra note 90, at 138–47. 95 Wissenschaftlicher Beirat beim Bundesminister für Verkehr und digitale Infrastruktur, supra note 85. 96 Nestor M. Davidson & John J. Infranca, The Sharing Economy as an Urban Phenomenon, 34 YALE L. & POL’Y REV. 215, 241–47 (2016). 97 Id. at 228–29. 98 Gregory D. Erhardt, et al., Do Transportation Network Companies Decrease or Increase Congestion? 5 SCIENCE ADVANCES 1 (May 2019), https://advances.sci encemag.org/content/advances/5/5/eaau2670.full.pdf. 99 N.Y.C. TAXI AND LIMOUSINE COMMISSION AND DEP’T OF TRANSP., IMPROVING EFFICIENCY AND MANAGING GROWTH IN NEW YORK’S FOR-HIRE VEHICLE SECTOR 2–4 (2019), www1.nyc.gov/assets/tlc/downloads/pdf/fhv_congestion_study_ report.pdf. 100 On June 12, 2019, New York City Mayor de Blasio announced an extension of FHV Caps, which may be transformed in a permanent solution to congestion issues. See Press Release, N.Y.C. Office of the Mayor, Mayor de Blasio Announces Extending FHV Caps to Protect Hardworking Drivers, Increase Their Pay & Reduce Cruising by Empty Cars in Manhattan (June 12, 2019), www1.nyc. gov/office-of-the-mayor/news/301-19/mayor-de-blasio-extending-fhv-capsprotect-hardworking-drivers-increase-their-pay-#/0. 101 Shannon Bond, Uber Sues New York City Over For-Hire Car Licence Cap, FIN. TIMES (Feb. 15, 2019), www.ft.com/content/db15a28e-3162-11e98744-e7016697f225. 102 See New Urban Agenda, supra note 2, ¶ 114.

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103 ALEX MOAZED & NICHOLAS L. JOHNSON, MODERN MONOPOLIES: WHAT IT TAKES TO DOMINATE THE 21ST CENTURY ECONOMY 170–74 (2016). 104 Daniel E. Rauch, Local Regulation of the Sharing Economy, in THE CAMBRIDGE HANDBOOK OF THE LAW OF THE SHARING ECONOMY 249, 250–52 (Nestor M. Davidson, et al. eds., 2018). 105 Nestor M. Davidson & John J. Infranca, The Place of the Sharing Economy, in THE CAMBRIDGE HANDBOOK OF THE LAW OF THE SHARING ECONOMY 205, 214 (Nestor M. Davidson, et al. eds., 2018).

Index

Note: Italic page references indicate figures. access to livelihoods, post-disaster 167–168 Air Quality Directive (European Union) 176 Alexander, Gregory 123 Alves, Alaôr Caffé 39 American urban planning 122 Amsterdam Smart City program (Netherlands) 67n11 Aquino III, Benigno 165 Arnstein, Sherry 74 Artificial intelligence (AI) 88–89 Athens (Greece) 57 ‘Back to Basics’ approach 110–111 Balbuena, Pilar 146 Bamu-Chipunza, Pamhidzai 150 Barcelona (Spain) 57–58, 91–97, 129n16 Beijing (China) 177–178 Beyond Food 149 Big Data 88–89 Blablacar car-sharing platform 181 bonds 27–28 borrowing: bonds 27–28; covenants 29; disclosure regulations 28; general obligation debt 29; loans 27–28; municipal bonds 27–28; overview 25–27; pledges 29; primary markets 28; secondary markets 28; in South Africa 28; special obligation debt 29; as spending choice 25–29; tax revenue and 29; transparency regulations 28 bottom-up citizen participation 77, 80, 82–83 Brazil: City Statute 36, 40; Federal Constitution (1988) 36, 44–45n8; Institute of Geography and Statistics

35; National Urban Mobility Policy 36, 40; population of 34–35, 37, 41; spending choices 22; urbanization in 34–36; see also metropolitanism in Brazil Breaking New Ground Policy (BNG) (South Africa) 136, 139 Bria, Francesca 94 brownfields, right of use 57–58 Brussels (Belgium) 57 Budapest (Hungary) 57 Buen Vivir regime (Ecuador) 121 CALICO (Care and Living in Community) project in Brussels (Belgium) 57 camp coordination and camp management (CCCM) (Philippines) 166–167 capital costs/recovery 23–25 car-sharing platforms 181–183, 186 car usage taxes 90, 175, 177–179 Cerdá, Ildefonso 129n16 Charter for Human Rights and Principles for the Internet 94 Chief Science Officers (CSOs) 60, 63–64, 70n83 circular economy 53–54, 57, 65 cities: consumption growth in 49, 66–67n5; domains shaping 16; economic power of 49; limited power of 95–96; population of 34, 49, 107–108, 153, 158–159; right to the city approach 5, 49–50, 66, 118–124, 126–128; role in Urban Agenda for the European Union 50–55, 59, 66; shared vision for sustainable development 3–6, 49–50; smart 5,

194

Index

67n11, 87–90; surveillance in 90, 96; technologies and 87–90; workforce in 145; see also metropolitan challenges; urbanization Cities Coalition for Digital Rights (Coalition) 91, 93–94, 96–97 citizen participation: approaches to local 76–77, 80; bottom-up 77, 80, 82–83; inclusive urban planning and 114–115; ladder 74; legal issues 82–83; mechanisms 77–80; New Urban Agenda and 74–75, 83–84; online tools 81–82; organic 77–78; overview 75, 83–84; participatory bias and 81; Podemos and 77; policy and 75; professionalization of 81; technical issues 82–84; top-down 77–80, 82–83 City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 139–140 City Statute (Brazil) 36, 40 civic entrepreneurship 63 Civic eState transfer network in Naples (Italy) 62–63 climate change/adaptation 53, 65, 163, 174 Co-City Turin project (Italy) 61–62, 66 Code on the Third Sector (Italy) 61 co-governance 50–52, 55, 57, 60, 62–66 co-housing 56–58 Colau, Ada 92 collective bargaining 147, 154–155, 158–159 Colombian Constitution 120–121 community land trusts (CLTs) 56–58 community-led housing 56–58 concentric-circle-theory analysis 119–120, 122–123, 126–127, 128 congestion charges 90, 175, 177–179 connection fees 24, 32n33 conservation of resources 54; see also sustainable development consumption, global 49, 67n5, 87, 90, 124 consumption taxes 21 County Governments Act (Kenya) (2012) 115 Coviolo Wireless Initiative (Italy) 64 ‘Curing the Limbo’ project in Athens (Greece) 57 Dakar (Senegal) 148 Dasgupta, Rana 25

data commons 93 data/technology issues: Artificial Intelligence 88–89; background information 87–88; Barcelona’s Digital Plan 91–97; Big Data 88–89; Charter for Human Rights and Principles of the Internet 94; Cities Coalition for Digital Rights 91, 93–94, 96–97; data commons 93; digital gap 93, 95–96; digital technologies 87–88; entitlements 87–88, 90, 92, 96; in future 87, 96–98; General Data Protection Regulation of European Union 93, 96; Internet of Things 88–89; interoperability mandates and 93–94, 97–98; limits of city power and 95–96; Open Data movement 91–92, 97; overview 87–88, 98; privacy 88, 92–94, 96–97; smart cities 89–90, 97; sovereignty 91–94; surveillance 88, 90, 95–96 Deloitte report 92 Digital City Plan (the Plan) in Barcelona (Spain) 91–97 digital gap 93, 95–96 digital technologies 51, 87–88; see also data/technology issues Disaster Response Operations Monitoring and Information Center (Philippines) 166 Displacement Tracking Matrix (CCCM) 166–167 E-Co-Housing project in Budapest (Hungary) 57 ecological function of property 120, 123–125 economic activities taxes 20–21 energy transition issues 54 Essential Law 110–111 European Commission 176 European Investment Fund (EIF) 53 European Union 93, 96, 176, 180, 183; Urban Agenda for European Union excise taxes 21 exclusion of informal workers 108–110 Federation of Petty Traders and Informal Workers Union of Liberia (FEPTIWUL) 156–157 Federation Task Force (Monrovia) 156 Ferreria-Mercado, Alexie 168–169 financial activity taxes 20–21

Index financing issues: background information 15–16; borrowing as spending choice 25–29; capital costs/recovery 23–25; community engagement and 30; connection fees 24, 32n33; covenants 27, 29; disclosure regulations 28; domains shaping cities and 16; economic activities taxes 20–21; enabling framework for 18; financial activities taxes 20–21; general obligation debt 29; intergovernmental transfers 18, 22, 25, 29; land/real property taxes 19–20; land value capture mechanisms 20; legal issues/ environment for 17–19; loans 27–28; local taxes 19; metropolitanism in Brazil 40–42; municipal bonds 27–28; operational cost recovery 25; overview 16, 30; in Pakistan 31n7; in Philippines 30n6; pledges 29; primary borrowing market 28; prioritization 16; redistribution 16; reserve funds 29; revenue choices 19–22; secondary borrowing market 28; social finance 65; in South Africa 21, 28, 30n5, 31n8, 33n42; special obligation debt 29; spending choices 22–29; taxincrement financing 20; transparency regulations 28; urban innovative project 65; user fees/charges 21–22; VAT 21; water systems 17, 21–25, 32n35 Fraser, Nancy 146, 159 Friedman, Milton 20 General Data Protection Regulation (GDPR) of European Union 93, 96 general obligation debt 29 George, Henry 19–20 Ghent (Belgium) 63 Give2Asia 168 Global Charter-Agenda for Human Rights in the City 127 Global South 96, 98, 106, 111, 115 governance: ‘citizen-centric’ digital tools for 51; co-governance 50–52, 64–66; metropolitanism in Brazil 40–42; multi-stakeholder perspective 50–55; New Urban Agenda in strengthening 132–133; approaches 61–62, 71n95 Government of the Republic of South Africa v. Grootboom (2000) 135

195

gross domestic product (GDP), global 49 Guiding Principles on Internal Displacement 112 ‘habitat participatif’ concept 58 Hart, Keith 147 Heinz, James 145 heritage markets 153 ‘Home Silk Road’ project in Lyon (France) 57 Housing Act 107 (South Africa) (1997) 134 housing continuum 55 housing issues: co-housing 56–58; community land trusts 56–58; community-led housing 56–58; New Urban Agenda and 132; post-disaster policy 169; property rights/land use issues and 125; questions surrounding 4–5; ‘right to the city’ and 5; smart cities and 5; Sumak Kawsay regime and 121; Thematic Partnerships and 53, 55–58; Urban Agenda for the European Union 53, 55–58; Urban Innovative Action 56–58; see also right to housing in South Africa human rights issues: background information 105–107; exclusive urban planning 107–110; frameworks 111–113; Guiding Principles on Internal Displacement 112; informal settlements 106–107; New Urban Agenda and 105–106, 112; overview 115–116; reforming urban planning law 110–115; sustainable development 106; Universal Declaration of Human Rights 105, 112, 127; urban planning legislation and 108–110 ‘Identifying and Managing Under-Used Land’ (TP Action Plan) 54 inclusive urban planning: background information 105–107; citizen participation and 114–115; exclusive urban planning and, historical perspective of 107–108; innovative approaches to 113–114; New Urban Agenda and 105–107, 111; overview 115–116; reforming urban planning legislation and 110–115; Universal Declaration of Human Rights and 127; urban planning legislation and 108–110

196

Index

income taxes 21 India: spending choices in 22; street vendors in public space issues in 113–114, 151–154, 157–158; tax and 30n5 Informal Economy Monitoring Study (IEMS) 148–149 informal employment 154–156; see also street vendors in public space issues informal sector 147–151, 156, 159; see also street vendors in public space issues informal settlements 106–110, 112 Institute of Geography and Statistics (IBGE) (Brazil) 35 integrated development plans (IDPs) 134 Integrated Urban Development Framework (IUDF) (South Africa) (2016) 137 intergovernmental transfers 22 Internal Displacement Monitoring Centre 166–167 International Conference of Labour Statisticians (ICLS) 148 International Covenant on Economic, Social and Cultural Rights 135 International Labour Conference (ILC) on Formalizing the Informal Economy 151, 54–155 International Labour Organization (ILO) 147–148, 151, 154–155, 158 Internet of Things (IoT) 88–89 interoperability mandates 97–98 Istanbul Declaration (1996) 15, 17 Italian Administrative Procedure Act 61 Italian Code of Public Contracts 60 Jacobs, Harvey M. 122–123 Johannesburg (South Africa) 137, 139–140 Krueckeberg, Donald 121–122 KwaZuluNatal Elimination and Prevention of Re-Emergence of Slums Act (South Africa) 137 Labour Relations Act (South Africa) 151, 154–155, 157 land squatting 169 land taxes 19–20 land use issues see property rights/land use issues

land value capture mechanisms 20 Latin American constitutions 120–121, 124 legislation: coexistence with other messages and 11; communication and 11; compliance and 11; design process and, clear 9; dialectic process and, evidence-based/ participatory 9; exclusive urban planning 108–110; experience and, past 12; frameworks for effective 8–10, 12; implementation of 11; knowledge and 12; labour 151, 154, 157, 159; monitoring/reviewing/ evaluating process and 11–12; New Urban Agenda as enabler of effective urban 8, 12; points for 10–12; policy and, link to 9–10; purpose of 10; reforming urban planning 110–115; right to housing in South Africa and evolution of 133–138; solution and, clear legal 10; Spanish 76–77; street vendors 149–151; time required for 9; zoning 109–110 Ley 8/2007, de 28 de mayo de suelo 119–120 liberalism 120, 123, 183–185 Lilongwe (Malawi) 149 Living Labs 65–66 loans 17, 23, 27–29 local competences 38–40 local interest 38, 46n21 local sales taxes 21 local taxes 19 Loi ALUR 58 London (United Kingdom) 92, 175, 177–178, 183 Los Angeles City Council 146 Lyft car-sharing platform 88, 181 Lyon (France) 57 Madrid (Spain) 60, 77–81 Maly, Elizabeth Ann 168 mass transportation see mobility regulation issues Mataró (Spain) 57 McKinsey Company’s report on Smart Cities (2018) 90 Meagher, Kate 159 mega-urban settlements 137 Metropolis Statute (Brazil) 36, 40–43 metropolitan challenges: complexity of urbanization and 34; disordered growth 34; governance 42–44;

Index metropolitan fact 35–36, 42, 44n5; metropolitan region as solution to 39, 46n26; power scales 34–35; social exclusion 35; triad of governance, transparent action, and control 35; see also metropolitanism in Brazil metropolitanism in Brazil: City Statute 36, 40; competence division and 37–40, 45n12; federal states and 37–40; financing issues 40–41; governance 40–42; local competences and 38–40; local interest 38, 46n21; metropolitan region and, 39, 46n26; Metropolis Statute 36, 40–43; National Urban Mobility Policy 36, 40; New Urban Agenda and 42–43; Public Consortium Law No. 11,107 42; reality of 34–36; State competences and 37–38; Union competences and 37 metropolitan region 39–40, 46n26 metropolitan transportation systems see mobility regulation issues Mexico City (Mexico) 148–149 microfinance 53 Milan (Italy) 60, 70n85 Millennium Development Goals (MDGs) 136, 140, 141–142n2 mobility regulation issues: background information 174–175; cannibalization of public mass transportation systems 180, 189n51; capping ride-hail drivers 185, 191n100; common approaches to addressing 175; congestion charges 175, 177–179; efficiency 184–185; environmental threshold values 176–177; Low Emission Zones 176; mass public transportation improvements 179–181; New Urban Agenda and 174–175; overview 186; pollution 176–177; private ‘shared transportation’ systems 98, 181–185; private vehicles 176–177; public services’ role 178–181; public space 178–181; social fairness and 184; taxis 180–181, 189n52; Thematic Partnerships and 54; traditional instruments, reinforcing 175–178; traditional public transportation and private ‘shared transportation’ 183–185 Monrovia (Liberia) 151, 156–158 Monrovia City Corporation (MCC) 156–157

197

Moreira Neto, Diogo de Figueiredo 38 municipal bonds 27–28 Municipal Structures Act (South Africa) 134 Nairobi (Kenya) 109 Naples (Italy) 60, 62–63 National Administrative Procedure Act of Public Administration (Spain) 79 National Association of Italian Cities 61 National Association of Street Vendors of India (NASVI) 152–154 National Disaster Risk Reduction and Management Council (NDRRMC) (Philippines) 166 National Economic Development and Labour Council (NEDLAC) 155 National Housing Code (South Africa) 135 National Urban Mobility Policy (Brazil) 36, 40 Neighbourhood Social Centres (NSCs) 64, 72–73n109 New Urban Agenda (NUA): as benchmark for review of national policies 7; citizen participation and 74–75, 83–84; concrete action and 6; digital technologies and 87–88; domains shaping cities and 16; employment and 145; as enabler of urban legislation 8; as goalsetting instrument 6–7; goals of 17; governance and, strengthening 132–133; governments in implementing commitments 132–133; housing issues and 132; human rights and 105–106, 112; implementation issues 6; inclusive urban planning and 105–106; international documents and, binding/non-binding 4–5, 15; language in 131; legal effect of 4–5; metropolitan governance and 42–43; mobility and 174–175; multi-stake partnerships in 51; national policy and 6–7; overview 12; policy and 5–12; post-disaster shelter policy and 163; poverty and, ending 17, 49, 112; property rights/land use issues and 118–119, 123–127; Quito Implementation Plan and 4; shared vision for sustainable development and 3–6, 49–50, 123, 131; smart cities and 88–89; social inclusion issues 145–146; as soft law instrument

198

Index

3–5, 12, 131; Spanish Urban Agenda and 74; strengths of 6; transformative commitments and 4, 6–7; Urban Agenda for the European Union and 50–52; urbanization and 126; urban policies and 5–12; weaknesses of 6 New York (New York) 185 Not In My Backyard (NIMBY) movement 120 Olga Tellis & Others v. Bombay Municipal Corporation & Others 152 Open Data movement 91–92, 97 ‘Operation Murambatsvina’ (Operation Drive Out Rubbish) (Zimbabwe) 110 Organisation for Economic Co-operation and Development (OECD) 183 Pact of Amsterdam (2016) 51–52 Paris Climate Agreement (PCA) 174 Philippine Red Cross 166 Physical Planning (Building and Development) (Control) Rules (Kenya) (1998) 108 Pigouvian taxes 175, 177, 179 ‘platform state’ 63 Podemos (Spanish political party) 77 policy: citizen participation and 75; European Union 49–51; international 49–50; legislation and, link to 9–10; national 6–7; New Urban Agenda and 5–12; review process 7; right to housing in South Africa and evolution of 133–138; right to housing in South African 133–138; urban 5–12 population: of Africa 158–159; of Brazil 34–35, 37 41; of cities 34, 49, 107–108, 158–159; global 107, 158–159 post-disaster policy: access to livelihoods 167–168; background information 163–164; cultures and, local 170; displaced persons and, number of 163; housing issues 169; land squatting 169; legal issues, local 169; lessons from 170; New Urban Agenda and 163; overview 163, 170; prolonged displacement and associated losses 169–170; risk mindsets/interpretations based on experience and 168–169; Tohoku Earthquake in Japan (2011)

164–165, 168–170; Typhoon Haiyan in Philippines (2013) 165–170 poverty 17, 49, 107, 112 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 134 privacy issues 96–97 private property rights 122–123 property rights/land use issues: citizens’ rights 126–127; in Colombia 120–121; concentric-circle-theory analysis and 119–120, 122–123, 126–127, 128; conflicts over rights 123–127; control through urban planning 125–126; ecological function of property 124–125; in Ecuador 121; in France 121; Global CharterAgenda for Human Rights in the City 127; housing issues and 125; Latin American constitutions and 120–121; liberalism and 123; limits of 122–123; model analyses and 120–121; New Urban Agenda and 118–119, 123–127; NIMBY movement and 120; overview 127, 129; private property rights 122–123; public intervention and 122–123; right to the city 5, 49–50, 66, 126–127; social function of property 120–121, 124–125; in Spain 121; Spanish law and 119–120; urban development rights/control 125–126 Protection of Livelihood and Regulation of Street Vending Act (India) (2014) 113–114, 151–154 Public Consortium Law No. 11,107 (Brazil) 42 public participation see citizen participation Public-Private-Partnership (PPP) 58, 64–65, 68n43 public service, laws of 183–184 public space 178–181; see also property rights/land use issues; street vendors and public space public transportation see mobility regulation issues Quito Declaration 15; see also New Urban Agenda (NUA) Quito Implementation Plan 4 real property taxes 19–20 Recommendation 204 (ILO) 151, 154–155, 158

Index Reconstruction and Development Programme (RDP) (1994) 134–137 redistribution 16, 159 Reggio Emilia (Italy) 60, 63–64 Reggio Emilia Collaboratory 63–64 Regulation for Citizenship Agreements (Italy) 63–64 Residents of Joe Slovo Community, Western Cape v. Thubelisha Homes 139 revenue choices: financial activities taxes 20–21; intergovernmental transfers 22; land/real property taxes 19–20; land value capture mechanisms 20; local taxes 19; overview 19; user fees/ charges 21–22 Ricardo, David 19–20 ride-sharing platforms 88, 181, 185 right to the city 5, 49–50, 66, 122, 126–127 right to housing in South Africa: Breaking New Ground Policy 136, 139; building standards 109; City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 139–140; Constitution 133–134, 140; current status 140–141; Government of the Republic of South Africa v. Grootboom 135; Housing Act 107 (1997) 134; informal settlements 106, 109–110, 132; integrated development plans 134; Integrated Urban Development Framework 137; International Covenant on Economic, Social and Cultural Rights 135; Johannesburg challenge 137; judicial vindication of 138–140; KwaZuluNatal Elimination and Prevention of Re-Emergence of Slums Act 137; legislation, evolution of 133–138; mega-urban settlements 137; Millennium Development Goals 136, 140; National Housing Code 135, 139; overview 132–133, 140–141; policy, evolution of 133–138; Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 134; Reconstruction and Development Programme (1994) 134–137; Residents of Joe Slovo Community, Western Cape v. Thubelisha Homes 139; Spatial Planning and Land Use Management Act 16 137 ‘right of use’ on buildings/brownfields 57–58

199

risk mindsets/interpretations, postdisaster 168–169 Rittich, Kerry 159 Rolland, Louis 183–184 Safe Sidewalk Vending Act (Los Angeles) 146 sales taxes, local 21 San Francisco (California) 178, 185 ‘sanitation team’ (Monrovia) 156 secondary borrowing market 27–28 security/public space issues 55 self-employed 154–155; see also street vendors in public space issues Senegal 149 ‘shared transportation’ systems, private 98, 181–185 shelter policy see post-disaster policy Singer, Joseph 123 single-use zoning laws 110 Skinner, Caroline 146 smart cities 5, 67n11, 88–90 social finance (SF) 65 social function of property 120–121, 123–125 social hubs for digital transition/ innovation (SDIs) 64 social inclusion issues 145–146, 158–159; see also street vendors in public space issues social partnership 61, 71n91 soft law instruments 3–4 South Africa: borrowing in 28; collective bargaining in 154–155, 155; Constitution 133–134, 140; financing issues in, 30n5, 31n8; ‘free basic services’ program 21–22; ILO recommendation 204 and 154–155; informal economy in 154–155; Labour Relations Act 151, 154, 154–155, 157; Municipal Structure Act 134; self-employed in 154–155; street vendors in public space issues in 147–148, 151, 156–158; urban challenges in 23; see also right to housing in South Africa sovereignty of data issues 91–95 Spanish Constitution (1978) 76 Spanish Local Government Act (LBRL) 76, 78–81, 83 Spanish Urban Agenda: background information 74–75; challenges 80–83; citizen participation and 74, 76–77; Constitution and 76;

200

Index

15M-Indignados social movement and 77; legislation 76–77; lessons from 80–83; LRBL and 76, 78–81, 83; mechanisms of citizen participation and 77–80; National Administrative Procedure Act of Public Administration and 79; New Urban Agenda and 74; Urban Planning Act and 79 Spatial Planning and Land Use Management Act 16 (SPLUMA) (South Africa) (2013) 137 special obligation debt 29 spending choices: borrowing 25–29; in Brazil 22; capital costs/recovery 23–25; in India 22; operational cost recovery 25; overview 22–23; water services 23–25 State competences (Brazil) 37–39 Stockholm (Sweden) 177 StreetNet 151 street vendors in public space issues: analysis of case studies 157–158; Bamu’s analysis of 149–150; collective bargaining 154–155; ‘Concept Note’ and 155; contestations by middle class and private property developers 146; in Dakar 148; in Ghana 147–148; heritage markets 153; in India 113–114, 151–154, 157–158; in informal economy 147–151, 156, 159; International Labour Conference and 154–155; legislation/regulation 149–151; in Los Angeles 146; in Mexico City 148; in Monrovia (Liberia) 151, 156–158; National Association of Street Vendors of India and 152–154; National Economic Development and Labour Council and 155; Olga Tellis & Others v. Bombay Municipal Corporation & Others 152; overview 158–159; Recommendation 204 of ILO 151, 154–155, 158; social dialogue 151–154; socio-economic contribution to city 148–149; Sodan Singh v. New Delhi Municipal Committee 152; in South Africa 147–148, 151, 156–158; StreetNet and 151; in sub-Saharan Africa 148; taxes and 149; WIEGO and 148–149, 151, 155 sub-Saharan Africa 107, 109, 148 Sumak Kawsay regime (Ecuador) 121 surveillance issues 90, 96

sustainable development: decentralization and 30; human rights and 106; shared vision of NUA and 3–6, 49–50, 123, 131; transformative commitments to 4, 6–7; urbanization and 3 Sustainable Development Goals (SDGs) 34, 49, 118, 131, 141–142n2, 174 Tácito, Caio 38–39 taxes: car usage 90, 175, 177–178; consumption 21; economic activities 20–21; excise 21; financial activities 20–21; income 21; land 19–20; local 19; local sales 21; Pigouvian 175, 177, 179; real property 19–20; revenue from 29; on street vendors 149; VAT 21 tax increment financing (TIF) 20 taxis 180–181, 189n52 Thematic Partnerships (TPs): circular economy and 53–54; climate adaptation and 53; conservation of resources and 54; energy transition issues and 54; housing issues and 53, 55–58; migrant/ refugee inclusion and 52–53; mobility regulation issues and 54; new, establishing 54–55; public procurement and, innovative 58–64; role in Urban Agenda for the EU 53–55; security/public space issues and 55 Tibaijuka, Anna 151 Tohoku Earthquake in Japan (2011) 164–165, 168–170 top-down citizen participation 77–80, 82 Town and Country Planning Act (Zimbabwe) 110 Town and Country Planning Act of England and Wales (1947) 108 Town Vending Committee (India) 114 transparency regulations 28 Transport for London’s open data portal 91–92 Turin (Italy) 61–64 Typhoon Haiyan in Philippines (2013) 165–170 Uber car-sharing platform 88, 181, 185 U.N. Conference on Housing and Sustainable Urban Development (Habitat III) (2016) 3, 52, 111, 113, 118

Index U.N. Conference on Human Settlements (1976) 15 U.N. Declaration of Human Rights 154 U.N. Framework Convention on Climate Change (UNFCCC) 174 United Nations (U.N.) 49, 145 Universal Declaration of Human Rights 105, 112, 127 U.N.’s Sustainable Development Goals (SDGs) 34, 49, 118, 131, 141–142n2, 174 URBACT transfer network 52, 60, 63–64 Urban Agenda for the European Union: achieving 66; cities’ role in implementing 49–50, 52; Civic eState transfer network in Naples (Italy) 62–63; Co-City Turin project (Italy) 61–62; co-governance and 50–52, 64–66; collaborative innovation procurement project of Reggio Emilia (Italy) 63–64; communitybased economic development and 54–55; housing issues 53, 55–58; international organizations in implementing 52; lessons learned 64–66; multi-stakeholder perspective 50–52, 64–65; New Urban Agenda and 50–52; overview 66; priorities of 52; procurement and, public 58–64; solutions to urban challenges and, innovative 52; Thematic Partnerships’ role in implementing objectives 53–55; Urban Partnerships 52; see also Thematic Partnerships (TPs) Urban Areas and Cities Act (Kenya) (2011) 115 urban co-governance 50–52, 60, 64–66

201

urban collaboratories 65–66 urban development rights/control 125–126 Urban Innovation Labs 65–66 Urban Innovative Action (UIA) 52, 56–58 urbanization: in Brazil 35–36; complexities of 34; domains shaping cities and 16; New Urban Agenda and 126; rules 4–5; poverty and 49; sustainable development and 3–5; see also metropolitanism in Brazil; New Urban Agenda (NUA) urban mobility regulation see mobility regulation issues Urban Partnerships 52 Urban Planning Act (Spain) 79 Urban Science Office (Italy) 64 user fees/charges 21–22 Vancouver Declaration 15 Ville de Paris & Ville de Bruxelles & Madrid v. EU Commission 176 water services 23–25 water systems, financing 23–25, 27, 32n35 Women in the Informal Economy Globalizing and Organizing (WIEGO) 148–149, 151, 155 workforce, global 145 World Bank 23 ‘Yes We Rent!’ project in Mataró (Spain) 57 zoning laws 109–110