Cities, Soft Law, and Compliance: Signatory Cities Commitment to the Global Covenant of Mayors for Climate & Energy

Henry Altman

Vol. 43 Associate Editor

Founded in 2016, the Global Covenant of Mayors for Climate & Energy is a powerful example of the trend of cities organizing through quasi-legal ‘soft law’ agreements to confront global issues. The proliferation of the Covenant and other similar organizations has led to international law scholars questioning the traditional understanding of black letter State-based international law as dominant to international ordering. Despite the effectiveness of both hard law and soft law agreements being tied to the compliance of signatories with the agreements, academic discussions of soft law and cities minimally examine the actual compliance of cities.[1] In this post, I briefly survey the extent of compliance by signatories’ cities with the terms of the Global Covenant Agreement, finding that the Agreement has had limited success in inducing compliance. These shortfalls cannot be explained merely by the nonbinding nature of soft law. Instead, inadequate sanctions for noncompliance may explain ineffectiveness. The Global Covenant of Mayors for Climate & Energy The Global Covenant of Mayors for Climate & Energy is an international covenant of over 11,500 cities and local governments from 142 countries representing over one billion people that  “collaborates with city and regional networks, national government, and other partners to spark city climate leadership.”[2] To formally commit to the Covenant, “signatory cities” must submit a commitment letter signed by the city’s mayor or equivalent, and “mandated” by the local government’s responsible authority or municipal council.[3] By signing the commitment, the Mayors are committing to a three-year course of action where the city conducts a greenhouse gas (GHG) emissions inventory and climate risk assessment, and to developing, adopting, and using targets and plans to reduce GHG emissions, adapt to climate change, and improve access to energy.[4] To encourage and celebrate participation by member cities, the Covenant provides badges to the cities identifying and memorializing their progress towards being fully compliant with the commitment criteria.[5] To encourage cities to join, the Covenant suggests that membership can provide encouragement and inspiration, guidance and practical support, cooperation through city networks and regional covenants, visibility and recognition, better financial opportunities, and a role in shaping the future.[6] The Covenant’s activities include initiatives for investment, research, and data production surrounding urban climate adaption in addition to producing additional resources and hosting conferences and other events.[7] The specific commitments and membership structure “mirrors the treaty-signing process performed by nation-states” without the binding international law consequences involved in state commitments.[8] Soft Law and Cities At present, black letter international law provides little recognition or legal personality to cities, despite the rising prominence of cities as sites for encountering and confronting problems of a global scale, such as climate change.[9] Cities cannot be held liable for violations of international law, obtain legal standing in international courts, nor can they form binding treaties.[10] Despite a lack of access to binding, ‘hard law’, cities are increasingly demonstrating their ability to influence international law and politics.[11] Collectively, cities are demonstrating an increasing proclivity towards utilizing ‘soft law’[12] techniques such as adopting and implementing covenants, declarations, commitments, joint statements and policy plans that are “strikingly similar to international legal agreements” to address global challenges.[13] The commitment made by member cities of the Covenant fits within this template of soft law techniques. While the nonbinding characteristic of soft law differentiates it from hard law, it impacts international law both as an alternative to traditional black letter law in international ordering, by “leading the way to binding hard law,’ and elaborating upon binding hard law.[14] However, the extent to which any international agreement, be it traditional international law or a soft law covenant between cities, is effective, and in turn influential on those within and outside of the covenant, is dependent largely upon the compliance of signatories with the terms of the covenant.[15] Compliance with the Covenant Although compliance with the broad commitment by member cities to the Covenant itself is difficult to objectively measure, the terms of the pledge signed by member cities upon joining the Covenant provide specific binding language that serves as an appropriate benchmark to measure compliance with the agreement.[16] The Covenant’s database of cities and their awarded badges provides a mixed picture of compliance with the terms of the cities’ commitment. Of the over 11,500 signatory cities, only 163 have been awarded the “compliant” badge, that indicates commitment-year specific adequate progress towards creating an inventory, target, and plan for mitigating and adapting to climate change.[17] However, more than 9,400 cities have produced a mitigation target, and around 5,500 have been awarded mitigation inventory, and/or mitigation plan badges.[18] The statistics for adaption are significantly worse, with around 1,900 cities producing an adaption goal, and around 400 having been awarded adaption assessment and/or adaption plan badges.[19] Still, the data suggests that at least for mitigation a significant number of cities have made some effort towards compliance. While the Covenant’s website provides some information for what entails sufficient commitment to be considered “compliant,” it is unclear if any specific criteria are involved in any of the other badges.[20] Further, although regional groups within the Covenant may provide specific criteria for compliance, the awarding of these badges is based upon self-reported information. Although full compliance of member cities is not the only measure of the impact of the Covenant,[21] when statistics touting over 11,500 participating cities representing over a billion people are used to emphasize the Covenant’s reach and impact, full compliance by less than two percent of signatory cities inevitably limits the effectiveness of the agreement at influencing member cities and other international actors. Conclusion If the Global Covenant of Mayors for Climate & Energy is to be analyzed as a form of soft law, rather than, for instance, an international non-governmental organization, it is evident that it has had limited success in inducing compliance. The lack of compliance of member cities with the terms of their commitment cannot be explained solely by the lack of binding enforcement mechanisms.[22] The extent to which both hard law and soft law agreements encourage compliance depends in both instances upon the consequences associated with noncompliance. Although this blog has not attempted to answer why there is low compliance, if the Covenant is serious about encouraging their members to honor their commitment, it could consider making the benefits of compliance greater than receiving a badge. For example, access to resources such as financing and technical assistance could be more explicitly tied to compliance, the covenant could provide greater recognition of city’s efforts towards compliance, and compliant cities could be invited to special conferences or hold greater decision-making power.

[1] See Chrystie Swiney, The Urbanization of International Law and International Relations: The Rising Soft Power of Cities in Global Governance, 41 Mich. J. Intl. L. 227 (2020); Astrid Voorwinden & Sofia Ranchordas, Soft Law in City Regulation and Governance (Univ. Groningen Fac. L. Rsch. Paper Series, Paper No. 19, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3978959. [2] Who We Are, Global Covenant of Mayors for Climate Change, https://www.globalcovenantofmayors.org/who-we-are/ (last visited Feb. 6, 2022). [3] Proposed New Global Commitment Letter, Global Covenant of Mayors for Climate Change, https://www.globalcovenantofmayors.org/how-to-join (scroll down to “Download & Sign the commitment letter template”, then enter any country and English for language; then click on Commitment Letter and open the document) (last visited Feb. 6, 2022). [4] Id. Although the document uses the language of a binding commitment, as discussed below, there are no clear enforcement mechanisms or consequences for failure to honor the commitment. [5] What Is the Aim of the Badges, Global Covenant of Mayors for Climate Change, https://www.globalcovenantofmayors.org/faq/what-is-the-aim-of-the-badges (last visited Feb 6. 2022). [6] Why Join Us, Global Covenant of Mayors for Climate Change, https://www.globalcovenantofmayors.org/why-join-us (last visited Feb. 6, 2022). [7] Id. [8]  Swiney, supra note 1, at 265–66. [9] Id. at 228, 234. [10] Id. [11] Gregory C. Shaffer & Mark A. Pollack, Hard vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance, 94 Minn. L. Rev. 706, 719 (2010). [12] Swiney, supra note 1, at 271 (describing soft law as “nonenforceable standards and norms and relies on the force of persuasion, reputation, and cooperation . . . to induce compliance”). [13] Id. [14] Andrew T. Guzman, How International Law Works: Introduction, 1 Int’l Theory 285, 288–89 (2009); Shaffer & Pollack, supra note 11, at 744. [15] Andrew T. Guzman & Timothy L. Meyer, International Soft Law, 2 J.  Legal Analysis 171, 193 (2010). [16] Global Covenant of Mayors for Climate Change, supra note 3. [17] Our Cities, Global Covenant of Mayors for Climate Change, https://www.globalcovenantofmayors.org/our-cities (last visited Feb. 6, 2022). [18] Id. [19] Id. [20] See A Definition of Compliance for Cities That Use CDP or ICLEI’s Carbon Climate Registry for Reporting, Global Covenant of Mayors for Climate Change, https://www.globalcovenantofmayors.org/wp-content/uploads/2018/05/GCoM-Definition-of-Compliance-2018.pdf (describing how compliance under covenant definition involves specific year-by-year criteria for a city’s progress towards adaption and mitigation inventories, plans, and targets. For example, while in its first year of commitment the covenant asks cities to “report a minimum amount of GHG emissions data using GPC framework. In Year 2, cities must “report the activity data and emissions factors” underpinning this inventory, and in Year 3, cities must also “report emissions from the waste sector” and methane and nitrous oxide). [21] The activities of the Covenant, its initiatives, and the events it hosts and facilitates, also work to confront climate change, however these actions do not resemble ‘soft law.’ [22] Guzman & Meyer, supra note 15, at 193.     The views expressed in this post represent the views of the post’s author only.