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Testing the Boundaries of Subnational Diplomacy: The International Climate Action of Local and Regional Governments

Published online by Cambridge University Press:  06 May 2015

Joana Setzer
Joana Setzer*
Affiliation:
Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science (LSE), London (United Kingdom). Email: j.setzer@lse.ac.uk.
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Abstract

Since the 1990s, a number of local and regional governments around the world have started to engage in a real international or ‘paradiplomatic’ climate agenda. While the multilevel governance approach has advanced the examination of the actors and levels involved in climate governance, there is within this body of literature a limited consideration of the legal capacity of non-state actors to act across scales. This article addresses this gap and examines the potential limitations imposed on subnational diplomacy by international and domestic legal orders. The article draws upon the example of Brazil where, despite constitutional limitations on the involvement of subnational governments in international relations, paradiplomacy has been termed ‘federative diplomacy’ and institutionalized within the Ministry of Foreign Affairs and within the Presidency of the Republic. The article shows that the diplomatic activity of local and regional governments is still constrained by international and domestic legal frameworks. If cities and regions are to help in addressing the inadequacies of the international climate regime, then domestic and international legal frameworks will need to further accommodate subnational diplomatic activities.

Keywords

Subnational diplomacyParadiplomacyClimate changeMultilevel governanceTransnational networksBrazil

Information

Type
Articles
Information
Transnational Environmental Law , Volume 4 , Issue 2 , October 2015 , pp. 319 - 337
Copyright
© Cambridge University Press 2015 

1. INTRODUCTION

Local and regional governments across the world have become key actors in global climate governance. These subnational governments adopt progressive climate change laws and policies,Footnote 1 and establish their own emissions trading systems.Footnote 2 In addition, subnational governments are undertaking a real international agenda on climate change. Such a trend cannot be taken for granted. Governmental institutions are generally constituted to operate at specific jurisdictional levels, and they legislate and act within their respective territorial levels. Why then are local and regional governments engaging in the global governance of climate change? Some answers to this question have been provided by the multilevel governance (MLG) literature. Researchers in this field explore the multiple jurisdictions in which climate governance occurs, and provide a number of explanations for why subnational governments become involved in climate action. This body of literature has advanced the understanding of some of the drivers and outcomes of subnational participation in climate governance, but it takes for granted the legal competence of subnational entities to undertake international relations. Further research is needed to understand the legal scope and limitations of subnational climate diplomacy.

This article examines the legal context in which subnational diplomacy takes place. It argues that despite the apparent fluidity involved in MLG systems, a discussion of the expanding role of local and regional governments in international relations requires consideration of the legal basis for this expansion. The diplomatic activity of local and regional governments is still constrained by international and domestic legal frameworks. Ultimately, the limits to subnational diplomacy are defined by the type of activity undertaken and the domestic understanding of whether such activity interferes with national legislation. The article shows that, if cities and regions are to help in addressing the inadequacies of the international climate regime, then domestic and international legal frameworks will need to further accommodate subnational diplomatic activities.

The article draws on the example of paradiplomatic activities undertaken by subnational governments in Brazil. Despite constitutional limitations on the involvement of subnational governments in international relations, the diplomatic agendas carried out by Brazilian states and municipalities have been termed ‘federative diplomacy’ and institutionalized within the Ministry of Foreign Affairs and within the Presidency of the Republic. Drawing upon this case study, the article looks at the ways through which subnational governments are challenging pre-established legal competencies.

The article is divided into five sections. Following this introduction, Section 2 presents the MLG framework and the literature on multilevel climate governance, and some of its shortcomings in investigating international climate action by subnational governments. Section 3 examines the international and domestic legal limitations on subnational governments’ international relations. Section 4 considers the case of Brazil and how the Presidency of the Republic and the Ministry of Foreign Affairs are dealing with the engagement of subnational governments in international relations. The article concludes with a summary of the findings and of its contributions.

2. MULTILEVEL GOVERNANCE AND CLIMATE CHANGE

Governance across different levels of social organization has attracted growing analytical attention in recent decades. In the 1960s, Ostrom, Tiebout and Warren formulated the concept of polycentric systems to study the governance of metropolitan areas.Footnote 3 The polycentric approach described the conditions and normative implications of diffusion of authority across multiple, overlapping and fluid jurisdictions. Expanding this approach to the climate realm, Elinor Ostrom argued that the international regime is one piece of a complex puzzle, and small-scale governments can help to build the trust and commitment needed to overcome failures in collective action. A polycentric approach to climate change, therefore, encourages experimental efforts at multiple levels, as well as the development of methods for assessing the impacts of adopting particular strategies.Footnote 4

In the international arena, the MLG approach has been used to examine the dispersion of authority across multiple jurisdictions.Footnote 5 In their 2003 seminal work, Hooghe and Marks distinguished two coexistent types of MLG: Type I, represented as a vertical dimension, is based on federalist relationships between central government and subnational governments; Type II, represented as a horizontal dimension, is dominated by networks in which multiple independent, task-specific jurisdictions operate on numerous territorial scales. The first dimension emphasizes the links between administrative units; the second deals with interactions between public and private actors. In the same article, they argued that the dispersion of governance across multiple jurisdictions is more flexible and efficient than the concentration of governance in one jurisdiction.

The MLG theory encompasses fundamental aspects for understanding subnational diplomacy. The ‘multilevel’ aspect of the theory envisions the capacity of subnational governments to open the centre-periphery gate and cross the domestic-foreign divide; the ‘governance’ part of the theory, in turn, allows subnational governments to become part of daily international politics.Footnote 6 The MLG theory thus accepts the ideas that decision-making competencies are shared by actors at different levelsFootnote 7 and that political spheres are interconnected.Footnote 8 This scenario allows subnational actors to operate both in national and supranational arenas, creating transnational associations in the process. Subnational actors also try to influence policy and decision making at the international level.Footnote 9 As a result, national governments do not monopolize links between actors, but are one among a variety of actors contesting decisions that are made at a variety of levels.

With the input of geographers, the spatial aspect of the MLG approach was further developed to reflect the movement of governmental authority upwards (to regional and international organizations), downwards (to subnational governments, including regions and cities), and outwards (to international corporations, non-governmental organizations (NGOs), and other private and quasi-private bodies). Empirically, the MLG approach has been used to examine the implications of transnational interactions among world cities.Footnote 10

Since the mid-1990s, scholars have also used the MLG approach to understand current trends in the development of environmental and climate change governance.Footnote 11 Normatively, MLG has become a response to the mounting complexity and multilayered nature of environmental problems.Footnote 12 Analytically, the MLG approach helps to shed light on the various actors and scales involved in environmental and climate governance.Footnote 13 Consequently, environmental and climate governance is said to occur in an MLG process across multiple arenas of governance and on different scales, which includes large regions, subnational regions, municipalities and communities.Footnote 14

Among the various actors and scales, local and regional governments are presented as a crucial scale for tackling global climate change. Cities are significant contributors to greenhouse gas (GHG) emissions. The Stern Review suggests that cities account for up to 78% of carbon emissions from human activities.Footnote 15 Regional governments present different characteristics. Their position between the local and the national levels puts them in a privileged place to deal with environmental issues. In relation to the national government, regional governments have a comparative advantage in terms of knowing the needs and realities of their citizens, having the technical knowledge of environmental issues, and being able to adapt general policies to specific circumstances. In relation to local authorities, subnational governments encompass both urban and non-urban realities, a larger population, and have more significant budgets and responsibilities.Footnote 16

Transnational networks of cities are key components of MLG systems. Since the 1970s, subnational entities have joined together in transnational associations based upon common interests. These networks illustrate how cities can be ‘involved with something that reaches beyond their own boundaries’.Footnote 17 In the climate realm, much of the attention surrounding local networks is associated with the International Council for Local Environmental Initiatives (ICLEI – Local Governments for Sustainability)Footnote 18 and the C40 Cities Climate Leadership Group.Footnote 19

Transnational networks of regional governments in the climate sphere also exist, although so far they have received less academic attention. Happaerts, Van den Brande and Bruyninckx have studied two such networks: the Environmental Conference of the European Regions (ENCORE)Footnote 20 and the Network of Regional Governments for Sustainable Development (nrg4SD).Footnote 21 Their work suggests that while these networks represent regions vis-à-vis international organizations and influence multilateral decision making, mostly they foster cooperation between subnational governments and stimulate policy learning.Footnote 22 The R20 Regions of Climate Action is another regional government network.Footnote 23 It was founded in 2010 by then Governor of California, Arnold Schwarzenegger, and other global leaders in cooperation with the United Nations (UN), with the aim of promoting local economic and environmental benefits.Footnote 24

Some scholars suggest that these transnational networks of subnational governments foster policy learning and change.Footnote 25 Others argue that transnational networks help local governments in adopting GHG emissions reduction strategies.Footnote 26 Others, still, ponder that the actual impact of these networks on members’ actions has not yet been clearly established, and it is likely to be network specific.Footnote 27 More broadly, these networks are said to facilitate the bypass of nation states, and to apply political and normative pressures from multiple levels and directions.Footnote 28

Giving attention to the multiple horizontal and vertical interactions that promote coordination across levels of governance, the MLG approach successfully challenges the traditional state-centric focus of international relations literature. However, this lens still offers only a partial account of transnational interactions among subnational governments. In the first place, by trying to encompass the full myriad of political actors that operate across space, issues, organizational domains, and vertical and horizontal jurisdictional scales, the MLG literature provides an incomplete picture of the specific roles that subnational governments play in rescaling global environmental politics.Footnote 29 Additionally, the MLG perspective places most of its attention on cities and networks of cities, without giving sufficient attention to regional governments.

A richer and more complex picture of the international agendas of subnational governments may be gained by exploring the concept of ‘paradiplomacy’.Footnote 30 Since the late 1980s, scholars drawing on international relations and federalist theories have developed this concept to investigate specifically the international relations undertaken by regional, local or non-central governments.Footnote 31 These include having representations abroad, conducting trade missions, seeking foreign investment, and entering into bilateral and multilateral relations with nation states and/or other subnational governments across borders.Footnote 32 More recently, with the growing importance of cities, attention is being placed on ‘city diplomacy’Footnote 33 – defined as ‘the institutions and processes by which cities, or local governments in general, engage in relations with actors on an international political stage with the aim of representing themselves and their interests to one another’.Footnote 34 It has been argued that city diplomacy is driving the emergence of an influential urban international agenda led by mayors of major metropolises.Footnote 35

Secondly, the governance literature has made limited strides with regard to the legal and institutional basis for international climate action by non-state actors. Rescaling processes are often taken for granted, with little or no consideration of whether the actors have a legal basis for moving across levels of governance. For instance, are the representatives of subnational governments legally entitled to meet foreign dignitaries, to sign memoranda of understanding (MOUs) with other subnational governments across borders, or to establish emissions trading schemes? The paradiplomacy literature, however, thanks to its basis in federalist theory, does engage with some of the legal and constitutional limits of subnational governments’ international agendas.Footnote 36

Further consideration of the legal limits of subnational climate action and of subnational engagement in international relations appears in recent legal literature on climate change federalism.Footnote 37 Such legal considerations of the capacity of subnational governments to engage in the global governance of climate change can be further integrated into the MLG theory, adding a legal perspective to this body of literature.

In summary, while the MLG literature has recently advanced the examination of the actors and levels involved in global environmental governance, two shortcomings have been identified. Firstly, this literature offers only a partial picture of the transnational interactions in which subnational governments are taking part. Secondly, there is limited consideration of the legal capacity of non-state actors to operate across scales. Addressing the second gap more directly, the next section examines the potential limitations imposed by international and domestic legal orders on subnational diplomacy.

3. THE LEGAL BASIS FOR SUBNATIONAL DIPLOMACY

Local and regional governments are increasingly active in the transnational climate change arena. Before examining the legal context in which subnational diplomacy is taking place, it is worth clarifying the types of activity that are involved in subnational diplomacy. Although local and regional governments engage in a broad number of international activities,Footnote 38 I suggest that these activities fall within two main categories: collaboration and coalition initiatives.

In collaboration initiatives, local and regional governments collaborate with other subnational, national or international actors. In coalition initiatives, local and regional governments exert pressure over national and international actors. Moreover, the climate agenda drives local and regional governments to establish further coalition initiatives, and therefore to have stronger diplomatic roles. In collaborative initiatives, local and regional governments enter into agreements and MOUs, join transnational networks that promote information sharing, and establish market initiatives with other subnational actors across borders. Within the coalition initiatives, they exert pressure over national and foreign actors, both domestically (in the agenda-setting phase of climate negotiations), and internationally (participating in climate negotiation processes, through transnational networks or independently).

This typology parallels an earlier division of transgovernmental behaviour suggested by Keohane and Nye, in 1974, to explain the relations between bureaucratic sub-units of national governments (such as between the environmental ministries of two countries).Footnote 39 According to Keohane and Nye, transgovernmental coordination relations are consistent with the targets and intentions of top leaders, whereas transgovernmental coalition building involves situations where sub-units stand against their administrative structures.Footnote 40 The typology also relates to a recent theorization by Acuto, which identifies a two-track process through which cities engage in international relations. Using the example of the climate network C40, Acuto argues that one track is represented by C40’s technical efforts to curb climate change – similar to what I refer to as collaboration initiatives. The second track has a ‘cross-cutting lobby role’, which consists mostly of city diplomacy – similar to what I call coalition initiatives.Footnote 41

Both collaborative and coalition initiatives invite a crucial question: by engaging in subnational diplomacy, to what extent are local and regional governments exceeding their legal authority? As Blank suggests, the existence of two legal spheres makes the legal position of cities acting in the international political field ambiguous, to say the least.Footnote 42 National governments increasingly permit, and even encourage, local government involvement in foreign policy. Yet, national laws may hinder cities in their diplomatic activities. At the same time, while international legal rules increasingly extend to cities, they may not hold legal personality under international law. Similarly, Farber ponders that attempts by states to deal with the transboundary implications of climate policies face doctrines that are ‘particularly murky’.Footnote 43 The legal competence of local and regional governments to engage in international relations involves a consideration of the potential limitations imposed on subnational diplomacy by international and domestic legal orders. In the international legal sphere, local and regional governments hold no legal personality, whereas in the national sphere the legal rules applicable to city diplomacy vary from country to country.Footnote 44

3.1. International Law

In the first place, the sources of international law do not recognize subnational governments as possessing legal personality. Under international law, only national governments are international lawmakers;Footnote 45 subnational governments are treated as mere subdivisions of states and have neither legal standing nor independent presence in formal international institutions.Footnote 46 The international initiatives and agreements they establish with other subnational governments, or with a foreign national government and/or an international organization, do not fall within the ambit of the Vienna Convention on the Law of Treaties (VCLT).Footnote 47 Subnational initiatives lack the binding character of treaties or customary international law among nation states. The initiatives they establish across borders are, therefore, soft law – namely guidelines, recommendations, coordinating measures and other instruments which are not formally binding.Footnote 48 Consequently, the agreements that subnational governments sign are limited by their voluntary nature. Subnational diplomacy, then, has no international legal relevance.

Nevertheless, as Raustiala says, soft law instruments create a loose and adaptable framework in which information, ideas and resources are shared: they are non-binding as a legal matter, but highly effective and flexible in practice.Footnote 49 For example, in the past decades subnational governments have established policies to enhance corporate transparency and reporting in the environmental arena.Footnote 50 Their efforts to address climate change have achieved goals similar to those imposed by the Kyoto Protocol.Footnote 51 As Levit puts it, lawmaking in an era of globalization is a bottom-up process, ‘a soft, unpredictably organic process that generates hard, legal results’.Footnote 52

Moreover, subnational governments are pressuring the UN to provide a clearer position on the role they should have in international environmental negotiations and in the implementation of multilateral environmental agreements. With the adoption of Decision 1/CP.16 of the Cancún Agreements, the Conference of the Parties (COP) to the UN Framework Convention on Climate Change (UNFCCC)Footnote 53 recognized the need to engage a broad range of stakeholders, including subnational governments, for effective action on all aspects of climate change. Transnational networks of subnational governments contribute to this picture. City networks, such as the C40, aim to impact directly on other spheres of global governance by influencing the dynamics of both international and domestic public mechanisms (for example, by organizing international meetings, lobbying central governments, and participating in international fora). In this new diplomatic scenario, local and regional governments have started to call for the introduction of a new category of ‘governmental stakeholder’ among the accredited observers to the UN system.Footnote 54

3.2. The Domestic Legal Order

In the second place, the legitimacy of subnational governments to act internationally depends on the domestic legal order. What subnational governments may do internationally is limited by the constitutional competencies that they have been granted within their national contexts.Footnote 55 From this angle, there are three possibilities: (i) the national government explicitly recognizes the subnational government’s international relations; (ii) paradiplomacy is constitutionally and/or legally forbidden; or (iii) the national constitution and domestic legislation are silent on this possibility.

Few countries have legislated explicitly on the international capabilities of subnational governments. Since 1992, France has allowed subnational governments to engage in international cooperation and, since 2007, it has allowed them to enter into cooperation or development agreements with other subnational governments worldwide.Footnote 56 In 1993, Belgium adopted the in foro interno in foro externo principle, which allows subnational governments to conduct international relations in policy subjects for which they are internally competent. Belgium also accepts representatives from subnational governments in national delegations for international meetings. In South America, Argentina has explicitly granted foreign policy powers to its sub-units. The constitutional reform of 1994 introduced a ‘paradiplomacy clause’, which became a legal corollary of international relations of Argentinian provinces.Footnote 57

Yet, in a number of countries the national government retains the exclusive power to enter into treaties or establish international relations with foreign governments. As a result, attempts to forge interstate and international cooperation to address regional or global environmental problems face legal questions. In the US context, for instance, states do not have the power to enter into treaties. The US Supreme Court has already invalidated state climate laws that presented ‘a risk of disruption or embarrassment in foreign affairs’.Footnote 58 The same can occur in relation to subnational attempts to forge interstate and international climate cooperation.Footnote 59 Efforts to create such coalitions encounter constitutional challenges, as the federal government retains the exclusive power to establish treaties or international relations with foreign governments. The reason behind this is that in international relations the federal government is expected to present a single or unified national position.Footnote 60 When subnational diplomacy action is questioned, this is based on the US constitutional Treaty Clause (only the President has the power, with the advice and consent of the Senate, to enter into treaties), the Compact Clause (which prohibits states from entering into agreements or compacts with other states or foreign powers except with the consent of Congress), the Foreign Commerce Clause (Congress regulates commerce with foreign nations), and the foreign affairs pre-emption doctrine (the federal government is the ultimate authority on foreign policy).Footnote 61

Despite this constitutional position, the facts on the ground are at least challenging the conventional wisdom that subnational governments may not enter into treaties. Just recently, the US state of California completed its first joint carbon emissions trade with the Canadian province of Québec.Footnote 62 The two governments linked their cap-and-trade programmes on 1 January 2014, enabling the mutual acceptance of compliance instruments issued by each jurisdiction, and allowing the jurisdictions to hold joint auctions of GHG allowances. The first joint auction was held in November 2014, with the next scheduled for the end of February 2015.Footnote 63 California has also held talks with the European Union (EU) about programme linkage.Footnote 64 These developments are worth noting not only because of the constitutional issues they raise regarding the role of US states in foreign relations, but also because of the sheer size of California’s economy and carbon emissions, as well as the fact that California has often been a ‘first mover’ among US states on matters of environmental policy.

Moreover, the US State Department coordinates the interaction between states and cities with foreign authorities and attempts to limit those that might interfere with national policy while implicitly recognizing the legitimacy of others. Within the US State Department, the Office of the Special Representative for Global Intergovernmental Affairs engages with transnational networks of subnational governments, such as Sister Cities International,Footnote 65 United Cities and Local Governments (UCLG),Footnote 66 the C40,Footnote 67 and the R20,Footnote 68 to further the global needs of state and local officials.Footnote 69

Most commonly, there is an absence of national legal rules, or at least a weak domestic legal basis, with respect to subnational diplomacy. Despite this relatively weak legal basis, de jure principles can be tweaked by de facto practices.Footnote 70 A key issue is whether the subnational action falls within an area of traditional state competence. If subnational actions violate the national government’s responsibilities for national security, defence, foreign affairs, or external borrowing, their involvement in international relations may be challenged before the courts.

It is worth noticing that some variation is expected depending on whether the relationship with a foreign authority is established by a local or a regional government. Indeed, the role of cities generally differs from that of other subnational units such as states and provinces. Cities engage more directly and closely with the needs of citizens, and generally have competence over local problems such as planning and waste management, while regional governments usually represent larger constituencies and have powers in fields that are connected with their territory. Also, it may be more difficult for central government to monitor the diplomatic activities of local governments, in part because of their number and because their initiatives do not always require formal legal arrangements.

In summary, legal problems arise when subnational governments undertake international diplomatic activities which deliberately or inadvertently challenge the central government: that is, when the actions of subnational governments interfere with the ability of the federal government to speak with ‘one voice’ on foreign affairs. The next section examines Brazil’s position in relation to the international activities undertaken by its federated units.

4. SUBNATIONAL DIPLOMACY IN BRAZIL

Brazil is a federal republic formed by the union of states, municipalities, and the Federal District. The legislative, executive, and judicial branches compose the Brazilian government. The Brazilian legal system does not provide for international actions undertaken by subnational entities; on the contrary, the 1988 Constitution establishes that only the Brazilian federal government has the power to direct international relations.Footnote 71 For instance, the section relating to the organization of the state establishes that the federal government is the sole sphere responsible for maintaining relations with foreign states and participating in international organizations.Footnote 72 Among the prerogatives of the president of the republic is the relationship with foreign statesFootnote 73 and the signature of international treaties, conventions and other acts, subject to the approval of the National Congress.Footnote 74 Subnational governments, despite being autonomous legal entities within the framework of public domestic law, are not included in the category of subjects of public international law, and there is no legal provision that allows states to direct international relations. The Supplementary Bill of Law No. 140, of December 2011, confirms this by stating that the federal government should promote the country’s environmental policy in the international sphere.Footnote 75 However, a ‘clear inconsistency’Footnote 76 is observed in Brazil: despite the lack of legal competence, subnational diplomacy does take place and in some cases is quite significant.

In spite of the lawlessness implicit in subnational diplomacy, Brazilian subnational governments tend not to act contrary to the country’s foreign policy. Brazilian paradiplomacy is seen as a result of the decentralized federative architecture approved by the new constitutional system.Footnote 77 If there was a real threat to federalism, the federal government could amend the constitution either to forbid subnational diplomacy or to extend to subnational governments the competence to enter into treaties. In 2005, the Federal Deputy and diplomat, Andre Costa, presented a so-called PEC (Proposal of Amendment to the Constitution) to explicitly authorize subnational diplomacy. The PEC was rejected on the ground that the constitution does not forbid subnational governments from establishing international agreements within their sphere of competence.Footnote 78 Behind this rejection also lies the idea that the constitution could not be amended in this respect as federalism is an entrenched clause, or a constitutional clause that prohibits any bill that proposes to make alterations. By refusing to amend the constitution or enact other specific legislation, the Brazilian government arguably consented to evolving subnational diplomacy without explicitly sanctioning it.

Gradually, the federal government undertook initiatives at the federal level to institutionalize subnational governments’ international relations. One of the first measures taken in this process of institutionalization was to rename paradiplomacy ‘federative diplomacy’ – a term that expresses the intention of decentralizing the country’s diplomacy.Footnote 79 That is, rather than a diplomacy that runs in parallel with Brazilian diplomacy, the term chosen by the federal government emphasizes the decentralization of diplomacy as a trend deriving from the government’s foreign relations.

The next step was to create a space for this federative diplomacy within the Ministry of Foreign Affairs. In 1997, under President Fernando Henrique Cardoso’s mandate, a Federative Relations Advisory Board (ARF – Assessoria de Relações Federativas) was created and regional representation offices were established in various states. The objective of ARF was to advise states and municipalities on their foreign relations. In 2003, under President Luiz Inácio Lula da Silva (Lula), ARF was replaced by a Special Advisory Board for Federative and Parliamentary Affairs (AFEPA – Assessoria Especial de Assuntos Federativos e Parlamentares). AFEPA became responsible for promoting coordination between the Ministry of Foreign Affairs, the National Assembly, states and municipalities, together with their respective legislative assemblies, helping them to develop their international relations.

President Lula also created, in the same year, a Division for Federative Affairs (SAF – Subchefia de Assuntos Federativos), linked to the Presidential Office. This Division was assigned to help to implement a broader policy of redefining the federative pact and to promote and support ‘federative international cooperation’ involving states and municipalities.Footnote 80 This includes initiatives involving the Organization of American States (OAS), the Southern Common Market (Mercosur/Mercosul), cooperation with Italian and French regions, and other international affairs established by subnational governments.Footnote 81

The creation of a federative advisory body within the Ministry of Foreign Affairs and of a federative international cooperation division within the Presidency confirmed the legitimacy of Brazilian subnational governments to engage in diplomacy. Both AFEPA and SAF recognize the transnational initiatives promoted by states and municipalities, and aim to support them in this agenda. Both bodies participate in subnational governments’ initiatives in an informal way; there are no legal requirements or specific guidelines to establish when and how the Ministry of Foreign Affairs and the Presidency should be involved in subnational governments’ international relations. The response of cities and states has been positive. By 2008, over 70% of the municipalities with more than 500,000 inhabitants had some form of paradiplomatic activity,Footnote 82 and by 2012 almost all state administrations maintained an international agenda and an international relations structure.Footnote 83

Notwithstanding the efforts to adapt to the paradiplomatic reality and the institutional apparatus that was created over the last 15 years, there are still a number of challenges to subnational international initiatives. The position of the federal government remains unclear,Footnote 84 and its relationship with subnational governments is not always harmonious. In addition to the legal domestic constraints mentioned above, there are also political and institutional challenges.

The political challenges relate to the dissolution of the diplomatic monopoly over foreign affairs. Brazilian scholars writing on domestic public law still maintain that the federal government is sovereign and is the only entity entitled to establish international relations.Footnote 85 The Foreign Ministry’s legal advisory board recently reiterated that ‘the federal government is the absolute master of acting and undertaking decision-making functions in the field of international relations’.Footnote 86 The institutional challenges relate to internal barriers that subnational governments face in trying to undertake international relations. For instance, subnational governments might encounter resistance from the national government and be unable to find adequate channels for establishing dialogue and consensus building with diplomats.

These political and institutional challenges are related to weak guidance on the practice of subnational international relations and a lack of criteria for monitoring the implementation and success of internationalization processes.Footnote 87 As a result, subnational international strategies are developed without focus, or strategic or long-term planning. The state of São Paulo is trying to change this pattern with its International Relations Plan for 2011–14,Footnote 88 which establishes three general aims to guide the state’s international activities, as well as 16 priorities and 54 goals, which include promoting foreign investment and loan targets, and ways to boost foreign language education in the state. This was the first instance in Brazil, and arguably one of the first in the world, of a subnational government establishing a comprehensive plan to act internationally.

Such challenges can also be observed in recent climate initiatives in which Brazilian subnational governments are engaged. For example, in November 2008 four Brazilian states from the Amazon region (Amazonas, Amapá, Mato Grosso and Pará), together with two Indonesian provinces (Aceh and Papua) and three US states (California, Illinois and Wisconsin), signed an MOU to establish the first state-to-state subnational agreement focused on Reducing Emissions from Deforestation and Degradation (REDD+) programmes.Footnote 89 This MOU resulted in the Governors’ Climate and Forests Taskforce (GCF), a subnational collaboration between 19 states and provinces from Brazil, Indonesia, Mexico, Nigeria, Peru, Spain, and the US.Footnote 90

In the months leading up to the December 2009 UNFCCC COP15 in Copenhagen (Denmark), the Amazonian states of the taskforce adopted a position that was not aligned with the strategy defended by the Brazilian government. In this case, a conflicting interaction between subnational governments and the central government became clear. Not only did they want to influence the national government, but they were also advocating an ‘Amazonian states position’, which consisted of supporting REDD and avoided deforestation mechanisms. This approach, however, was beyond what the negotiators could accept. President Lula, SAF, AFEPA, and the national negotiators met the Governors on several occasions until they formed a ‘Brazilian position’ that could be taken to COP15 in Copenhagen.

A central condition for a harmonious relationship between diplomats and subnational governments is that the various levels of government should not assume divergent positions. As acknowledged by Minister Carlos Eduardo de Ribas Guedes, the head of the Special Advisory Office for Federative and Parliamentary Affairs of the Ministry of External Relations:

[referring to the pre-COP15 period] We certainly acknowledge that there might be disagreement between the different levels of government, but divergent opinions should not reach the international community: there is only one national position and it will be voiced by the diplomats.Footnote 91

As the Brazilian example suggests, the institutionalization of the international agendas of subnational governments is not necessarily an endorsement of subnational diplomacy. To a certain extent, federative diplomacy is a way for the federal government to control, rather than to give independence to, subnational governments’ international agendas. So the main question is still whether subnational governments may act independently of the central government; that is, even if the national government genuinely believes in the idea of federative diplomacy, it envisions a decentralization via the Ministry of Foreign Affairs rather than bypassing it. Consequently, the margin for conflict increases when subnational governments undertake an international agenda that goes against the national government’s position. Federative diplomacy therefore attends to the demands by subnational governments for their own international agendas, but it incorporates their interests into the country’s foreign policy without allowing direct action to be undertaken by the federated units.

5. CONCLUSION

This article analyzed one aspect of subnational governments’ engagement in the multilevel governance of climate change: their legal competence to undertake an international agenda. It first showed that the linkages established within environmental politics occur across scales (vertically and horizontally). Taking into consideration the concept of paradiplomacy and the recent legal scholarly work on climate change federalism, the article suggested that the MLG literature still offers an incomplete picture of the legal capacity of non-state actors to operate across scales.

By engaging in collaborative and coalition activities in the realm of climate change, subnational governments are moving across jurisdictional levels, breaking the fixed issue areas and territories in which they traditionally operate. However, there are legal limitations when subnational governments move across scales. In public international law, international agreements entered into by subnational governments are soft law. In terms of the domestic legal order, subnational foreign-affairs activities depend on constitutional limitations established by each country. The international and the domestic legal orders therefore establish boundaries to subnational governments’ international relations, which have to be taken into consideration when examining their rescaling roles.

In Brazil, the federal constitution does not provide for international actions undertaken by subnational governments. Institutionalization within the federal government was a way to recognize subnational diplomacy without granting carte blanche. The national government recognized the desire of subnational governments for greater participation in diplomacy and demonstrated its willingness to comply by establishing an institutional framework for federative diplomacy. This combined the national primary role in foreign affairs with growing subnational participation. However, rather than giving independence to subnational governments, the institutionalization of ‘federative diplomacy’ can be seen as a means by which the federal government expands its control over the international agenda.

Although subnational governments lack legal personality under international law, and despite limitations under national law, the legal ground on which subnational diplomacy is based might be shifting. Climate change has offered subnational governments an opportunity to act across borders, and transnational networks are facilitating this process. The challenge that remains is how to reconcile the monopoly of central governments over international relations with the subnational interest, avoiding ambiguous situations in which the legality of subnational diplomacy can be contested. The diplomatic entrepreneurship of cities and regions calls for domestic and international legal frameworks to move beyond previous categorizations and appreciate the emergence of subnational participation in global governance.

Footnotes

I am grateful for the constructive feedback by two anonymous reviewers for this journal on earlier versions of this article.

References

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52 Levit, J.K., ‘Bottom-up International Lawmaking: Reflections on the New Haven School of International Law’ (2007) 32 Yale Journal of International Law, pp. 393–420Google Scholar, at 395.

53 New York (NY) US, 9 May 1992, in force 21 Mar. 1994, available at: http://unfccc.int. Decision 1/CP.16, The Cancún Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, UN Doc. FCCC/CP/2010/7/Add.1, 15 Mar. 2011, available at: http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf.

54 Nrg4SD, ‘Subnational Governments: Key Actors in the Rio+20 Process – nrg4SD Input to the Rio+20 Process’, Oct. 2011 – reviewed Apr. 2012, available at: http://tinyurl.com/Nrg4SD-Rio-20.

55 Happaerts, Van den Brande & Bruyninckx, n. 22 above.

56 Duran, M., ‘French Regions as Diplomatic Actors: The Case of Provence-Alpes-Cote d’Azur’ (2011) 9(4) French Politics, pp. 339–363CrossRefGoogle Scholar.

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58 LaMotte, Williamson & Hopkins, n. 37 above, at p. 409.

59 Kysar & Meyler, n. 37 above; Sovacool, B.K., ‘The Best of Both Worlds: Environmental Federalism and the Need for Federal Action on Renewable Energy and Climate Change’ (2008) 27(2) Stanford Environmental Law Journal, pp. 397–476Google Scholar.

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61 The Treaty Clause is contained in Art. II(2)(2) US Constitution; the Compact Clause is a provision in Art. I(10)(3) US Constitution; the Foreign Commerce Clause is found in part of Art. I(8)(3) US Constitution,

62 California Environmental Protection Agency (EPA), cap-and-trade programme, available at: http://www.arb.ca.gov.

63 California EPA, ‘Auction and Reserve Sale Information’, last updated 23 Feb. 2015, available at: http://www.arb.ca.gov/cc/capandtrade/auction/auction.htm.

64 See, e.g., ‘EU Plans to Link Emissions Trading Scheme with California’, The Guardian, 7 Apr. 2011, available at: http://www.theguardian.com/environment/2011/apr/07/eu-emissions-trading-california; and L. Zetterberg, ‘Linking the Emissions Trading Systems in EU and California’, Mistra Indigo Program, 2012, available at: http://www.ceps.eu/system/files/article/2012/10/Linking%20the%20Emission%20Trading%20Systems%20in%20EU%20and%20California.pdf.

65 See http://www.sister-cities.org.

66 See http://www.uclg.org.

67 N. 19 above.

68 N. 23 above.

69 US State Department, Office of the Special Representative for Global Intergovernmental Affairs, available at: http://www.state.gov/s/srgia/resources/index.htm.

70 Kelman, I. et al., ‘Island Disaster Paradiplomacy in the Commonwealth’ (2006) 95(386) The Journal of International Affairs, pp. 561–574Google Scholar, at 565.

71 Brazilian Federal Constitution, Arts 21(I) and 24(VII)–(VIII).

72 Ibid., Art. 21(I).

73 Ibid., Art. 84(VII).

74 Ibid., Art. 84(VIII).

75 Art. 7(III).

76 Vigevani, T., ‘The Legal and Institutional Framework for the International Management of Subnational Government Players in Brazil’ (2004) 8(21) Integration & Trade, pp. 25–43Google Scholar, at 30.

77 Milani, C.R.S. & Ribeiro, M.C.M., ‘International Relations and the Paradiplomacy of Brazilian Cities: Crafting the Concept of Local International Management’ (2011) 8(1) Brazilian Administration Review, pp. 21–36CrossRefGoogle Scholar; Tavares, R., ‘As relações internacionais do estado de São Paulo’ (2012) 20(4) Revista Política Externa, pp. 169–184Google Scholar.

78 Chamber of Deputies, Commission of Justice and Citizenship, ‘Manifestation over the Draft Law No. 475/2005, which Proposed the Addition of a Paragraph to Article 23 of the Federal Constitution to Allow States, the Federal District, and Municipalities to Promote Acts and Enter Agreements with Foreign Entities’, PRL1CCJC/PEC457/2005.

79 C. Brigadão, Relações internacionais federativas no Brasil: Estados e munícipios (Gramma, 2005), p. 21.

80 Decree 6,207, of 16 Sept. 2007. Art. 7 establishes the attributions of the Division for Federative Affairs. It revokes Decree 5,526, of 26 Aug. 2005, which in turn revoked Decree 4,968, of 30 Jan. 2004.

81 SAF, ‘A cooperação internacional federativa da Subchefia de Assuntos Federativos’, available at: http://www.portalfederativo.gov.br/bin/view/Inicio/CooperacaoInternacionalFederativa.

82 Milani & Ribeiro, n. 77 above, p. 26.

83 26 out of the 27 governments, according to Tavares, n. 77 above, at p. 175.

84 M. Andrade e Barros, A atuação internacional dos governos subnacionais (Del Rey, 2010).

85 Bastos, C.R., Curso de direito constitucional (Malheiros Editores, 2010)Google Scholar; Husek, C.R., Direito internacional público (LTR, 2010)Google Scholar; Varela, M.D., Direito internacional público (Saraiva, 2009)Google Scholar.

86 A.P.C. Medeiros, ‘Legal Opinion on the Legal Limits of the Agreement Entered by the City of Rio de Janeiro with an International Entity (1999)’, in A.P. Cachapuz de Medeiros (ed.), Pareceres dos Consultores Jurídicos do Itamaraty, Vol. IX, 1990–2000 (Fundação Alexandre de Gusmão, 2009), pp. 227–31, at 230.

87 See Andrade e Barros, n. 84 above.

88 Decree 57.932, of 2 Apr. 2012, available at: http://www.al.sp.gov.br/repositorio/legislacao/decreto/2012/decreto-57932-02.04.2012.html.

89 REDD+ is a mechanism for encouraging forest conservation and cultivation in developing countries, using funding from the developed world. REDD+ assigns financial value to carbon stored within forest resources, to make local preservation efforts eligible for foreign financing, including voluntary investment and offset credits generated through foreign carbon markets. The REDD+ terminology and concept originate from a 2005 proposal to the UN by the governments of Papua New Guinea and Costa Rica, in response to the Kyoto Protocol’s (n. 51 above) lack of mechanism to reduce deforestation emissions. The ‘+’ in REDD+ indicates the last category of strategies, which includes conservation, sustainable management of forests, and enhancement of forest carbon stocks. For more information on REDD+ and the California REDD+ experience see J. Lueders et al., ‘The California REDD+ Experience: The Ongoing Political History of California’s Initiative to Include Jurisdictional REDD+ Offsets within its Cap-and-Trade System’, Center for Global Development Working Paper 386, Nov. 2014, available at: http://www.cgdev.org/publication/california-redd-experience-ongoing-political-history-californias-initiative-include.

90 The GCF has been working since 2009 to advance jurisdictional programmes to reduce emissions from deforestation and land use, and to link these activities to emerging GHG compliance regimes and other pay-for-performance opportunities. Based on their experience in the GCF, in 2010 the states of California (US), Acre (Brazil), and Chiapas (Mexico) signed a separate MOU. Their aim was to cooperate more closely on the technical, legal, and institutional design issues associated with the effort to link state REDD+ programmes with California’s cap-and-trade programme. See the working group report, Evan Johnson (ed.), ‘California, Acre and Chiapas: Partnering to Reduce Emissions from Tropical Deforestation’, July 2013, available at: http://www.unredd.net/index.php?option=com_docman&task=doc_download&gid=9893&Itemid=53. On the California-Acre process see also E. Roessing Neto, ‘Linking Subnational Climate Change Policies: A Commentary on the California-Acre Process’ (2015) 4(2) Transnational Environmental Law (forthcoming).

91 Transcript of an interview with the author, Dec. 2010.