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23/09/2016

Should the New Urban Agenda be a binding agreement?

Scales of justice

Hopes are high for agreeing the UN’s New Urban Agenda at the Habitat III conference in October. But its commitments will be difficult to enforce because it lacks legal weight. Does this matter? Angus Evers sees grounds for hope, while Pablo Aguilar González argues that the agreement must be backed with legal force

Angus Evers

Global treaties and agreements can be difficult to conclude at the best of times, but are even harder to conclude if they are to be legally binding on their parties. While it may therefore facilitate the conclusion of such treaties and agreements if they are not legally binding, it means that they lack teeth and cannot be enforced against any parties that choose to ignore their commitments under them.
The intended outcome of the third United Nations (UN) Conference on Housing and Sustainable Urban Development, also known as ‘Habitat III’, which takes place in Quito, Ecuador, between 17 and 20 October 2016, is an agreed ‘New Urban Agenda’ (NUA). The NUA will set global standards for the achievement of sustainable urban development. An initial ‘zero draft’ was published on 6 May 2016 and has already been through several rounds of informal negotiations.

Urban rules

Assuming that a final document can be agreed at Habitat III, its successful implementation is likely to require adequate urban rules and regulations, good urban planning and design, and effective municipal finance, together with a recognition of the connection between the dynamics of urbanisation and the overall process of national development.
However, the NUA is not intended to be legally binding; it will only provide guidance. That is a contrast to other global agreements that try to tackle the environmental impacts of human development, most notably the UN Framework Convention on Climate Change (UNFCCC), its Kyoto Protocol and the December 2015 Paris Climate Agreement. The Paris Climate Agreement is likely to have a major impact on Habitat III and the NUA, given the importance for cities of mitigating and adapting to the effects of climate change, as will the Sustainable Development Goals that were also adopted in 2015.
What are the likely outcomes of the NUA?

"In due course we may see some of the principles developed in the NUA being adopted in national policies and legalisation, as has happened with the principle of sustainable development"

First, states will be asked to make commitments that are in alignment with the goals set out in the NUA and to set implementation targets. This seems like a similar process to the ‘Intended Nationally Determined Contributions’ provided for in the Paris Climate Agreement. It will be interesting to see the UK’s approach to these commitments, and to the negotiations more generally, as Habitat III will be the first major global conference in which the UK has participated since it voted to leave the EU in June.

UK policies

What (if any) new policies and substantive actions might the UK adopt independently of the EU? Given that the NUA will not be legally binding and that in any event international treaties do not automatically become part of domestic law in the UK, it is likely that there will be no immediate impacts for the UK.
But in due course we may see some of the principles developed in the NUA being adopted in national policies and legalisation, as has happened with the principle of sustainable development set out in the 1987 Report of the World Commission on Environment and Development, and with the flexible mechanisms set up under the UNFCCC and its Kyoto Protocol. There is also a business opportunity for the UK’s urban development professionals to assist other countries with framing and implementing their commitments under the NUA.  

Angus Evers is a partner and head of environment at Shoosmiths LLP


Pablo Aguilar González

Our urban centres no longer function as habitable spaces in which we can ensure a minimum quality of life or satisfy emotional, economic and physical needs. Instead, we are facing increasing dangers brought about by our irrational use of natural resources.
This process has severely impacted on those resources necessary to sustain our population centres – even bringing about serious changes in the global weather systems and climate. This has directly affected the quality of life of residents in both urban and rural centres. More worryingly, governments and institutions at all levels appear largely unable to control the worst consequences of human activities.

 

Hopeful models

Still, there are hopeful models. In Bolivia an official act called the Bill of Rights of Mother Earth has resulted in the formal recognition of land as legally entitled to protections [Ecuador, too, has written natural rights into its constitution – Ed]. The key here is the understanding of land as a dynamic, interrelated system – of which human settlements and cities are just one part.

"For the sake of those in today’s cities and human settlements and beyond, we must have a strong legal international framework to be implemented by member states of the United Nations"

For the sake of those in today’s cities and human settlements and beyond, we must have a strong legal international framework to be implemented by member states of the United Nations. Habitat III and its outcome strategy, the New Urban Agenda, are a clear opportunity in this regard.
The previous Habitat conferences in 1976 and 1996 did not meet many of their objectives, partly because they resulted in no legal obligation for the UN member states that signed the resulting agreements.

Five pillars of wisdom

This lack of binding obligation has prevented governments from effectively fulfilling their commitments, and meant that citizens have lacked any real opportunity to demand their rights under the Habitat agreements.
We offer the following proposal: make Habitat III legally binding for nations participating in the conference. Give legal force to the New Urban Agenda as an international agreement, similar to existing legally binding instruments on the environment.
This is just the first of five elements of a potential legal revolution that could be brought about through the New Urban Agenda. For the second ‘pillar’, we propose a ‘New Legal Urbanism’ based on a focus on human rights.
Third, we envision a new, integrated territorial legislative system, which would focus on fundamental rights and would link a spectrum of seemingly disparate issues: housing, waste management, urban development, the environment, climate change and more.
The fourth pillar is a new legal methodology for urban planning and design. This would bring together environmental, urban, rural, civil protection and cultural heritage regulations.
Finally, the fifth pillar consists of integrated legal tools for land management, moving in the direction of single licences at federal, state, and municipal levels.
The Colegio Nacional de Jurisprudencia Urbanística in Mexico has been working on a proposal for this idea for eight years. As yet, there is no example of this process. But our hope is that Mexico will be the first country to undertake such changes and move in the direction of a revolutionary new legal urbanism. If one of the guiding ideas behind Habitat III is that the future of sustainable development will be won or lost in cities, we need to ask: With what legal weapons will we go into battle?  

Pablo Aguilar González is an urban lawyer and president of Mexico’s Colegio Nacional de Jurisprudencia Urbanística

This article originally appeared in Citiscope and has been republished in The Planner via the Habitat III Journalism Project

Photo | iStock


Read more about Habitat III

What's on the Agenda? The New Urban Agenda assessed

A history of Habitat

Habitat III - What's in it for me?

How a city in Ecuador will shape life in the 21st century

Can Habitat III effect real change in our cities?

Two minutes with... Carolina Proaño

Why Habitat III must reflect the century of the city

Sustaining notes: Sustainable Development Goals and the UK

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