Law and the New Urban Agenda

A Comparative Perspective

Nestor M. Davidson, Geeta Tewari

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429582820
• Edition: 1
• Topic: Architecture
• Subtopic: Urban Planning & Landscaping

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.

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 forward-looking 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 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 figure 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 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 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 th...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication Page
• Contents
• List of figures
• List of contributors
• Acknowledgments
• Introduction
• Preface
• PART I The New Urban Agenda in the institutions and structures of urban law
• PART II Urban form and inclusion at the nexus of law and the New Urban Agenda
• Index