Christopher Waters
Professor of Law, University of Windsor
The Supreme Court of Canada recently highlighted the lack of constitutional status for municipalities in its decision regarding provincial cuts to the size of Toronto’s city council during the 2018 election campaign. The majority noted that “municipalities are mere creatures of statute who exercise whatever powers, through officers appointed by whatever process, that provincial legislatures consider fit.” However, whatever one’s views of the decision, there can be little doubt that as a matter of practice cities have entered a wide variety of areas unforeseen by the drafters of the Constitution or provincial legislation on municipalities.
One of the relatively new spheres in which Canadian cities have been involved is international law. Despite the lack of a formal role for city diplomacy in the Canadian constitutional order, Canadian cities have expanded their international engagement far beyond “sister city” relationships, which was once the extent of city diplomacy in this country (of course, cities -including city states- have had a much greater role historically and globally speaking). Many Canadian cities are now players in spheres ranging from climate change, to sanctuary cities, to human development. To take one example, 58 Canadian municipalities, large and small, are members of the Global Covenant of Mayors for Climate & Energy, and Canada’s big city mayors are represented at the UN climate change conference (COP26) currently taking place. Thus, while cities have no explicit mandate to engage internationally under the current constitutional or legislative order, neither are they excluded from doing so. Some cities have seized on this free zone with initiative and imagination, while others have been more reticent.
As a border city, Windsor provides a unique perspective on cities and international law and diplomacy. In a report recently written for the International Law Association’s Study Group on the Role of Cities in International Law, I highlighted the lack of formal governance links between Windsor and Detroit. Despite the thick integration of the two cities on many planes – economic, cultural, and personal- there are few formal cross-border governance mechanisms in place at the city-to-city level. Part of the reason for this is that well-established nation-to-nation governance links which regulate the Canada-US border are firmly in place. Trade (CUSMA), security (up to co-locating border staff), and boundary waters (through the International Joint Commission, among other regimes) are all managed without obvious involvement of the neighbouring cities. Scratch a little below the surface, however, and there is a large, often obscure, swathe of international relations between Windsor and Detroit.
Much of this diplomacy lies not in city council chambers but in broader public sector entities and “authorities.” I borrow this latter term from Valverde and Flynn, who suggest in an article focused on Toronto, but with implications for most cities, that “[s]pecial-purpose public authorities are ubiquitous, indeed are more numerous than governments. Some are time-limited (say an urban development corporation set up to revitalize a particular urban intersection), but many are ongoing, such as transit, housing and conservation authorities, and public utilities.”[i] This concept seems especially à propos in understanding diplomacy at the Windsor-Detroit border. From the Windsor-Detroit Tunnel Corporation (jointly controlled by the City of Windsor on the Canadian side and outsourced to a private corporation on the US), to emergency services cooperation, to cooperation between harbour masters, to policing and to cooperation over sporting/recreational events (marathons, cycle tourism and joint annual fireworks held on the river commemorating both national holidays), practical diplomacy takes place on a large scale.
This binational city governance is not always apparent or transparent, but it is real and exists along multiple points of contact. Often these links rely on the influence of individuals and NGOs who are “boundary spanners”.[ii] (As an aside, given Windsor-Detroit’s industrial heritage, I particularly like the term “spanner,” with implications both of a tool as well as someone who straddles). My own law school, with its links to Detroit law schools, would fall into this category. In addition to direct links, these boundary spanners also impact -sometimes in coalitions across the Detroit River- the nation-nation governance schemes. To take one simple example involving an “authority,” construction of a new bridge over the Detroit River -named after Gordie Howe, a Canadian player for the Detroit Red Wings hockey team- is currently ongoing. Following advocacy from active transportation advocates on both sides of the river, the Windsor-Detroit Bridge Authority agreed that the new span will have multi-use paths for cyclists and pedestrians and not just vehicles. (Interestingly, the Bridge is itself an example of innovative and collaborative border management between Canada and the US with implications for border city life; the Bridge Authority is a not-for profit Crown corporation owned by the Canadian government, but it is established by an agreement between Canada and a subnational entity, the State of Michigan.)
There is an increasing recognition that relying on informal boundary spanners will be insufficient to meet the sustainability and liveability agendas that the two cities are pursuing. More formal cross-border governance links are needed. In some ways the pandemic highlighted the importance of the border region having a voice with national and provincial/state governments. None of this is to say that informal integration is or will be steady, organic or easy. For starters, given the differences in scale, Detroit matters more to Windsor than vice versa. More broadly, there is a transnational unease which permeates interactions between the two cities. Border securitisation post 9-11, racial profiling and other structural barriers to access for marginalised communities (passport requirements, crossing fees, current lack of active transportation links), trade friction/“America First” policies, and vacillations of perceptions of Detroit (bankrupt/depopulated/crime-ridden or a great-American comeback story/the next Brooklyn) are among the reasons for simultaneous division as well as integration. Perhaps unsurprisingly, the number of border crossings has been on the decline in recent years, even before the pandemic. Despite this transnational anxiety, the extent of the economic and cultural linking of the cities -in some ways both on their own national peripheries- is remarkable. And the potential for inter-city diplomacy along the border -hopefully, in my view, in a way which engages international legal standards around climate change and beyond- is a goal worth shooting for.
My report for the ILA Study Group is the first Canadian report, but there is an ongoing call for reports from other cities. I would encourage fellow ILA Canada members to narrate and perhaps help shape their own cities’ engagement with international law and diplomacy through writing a city report.
Professor Christopher Waters was Dean of the Faculty of Law at the University of Windsor from 2015 to 2021. He has been a visiting scholar at several universities, including Aix-Marseille Université, and the Asser Institute in The Hague. His research interests are in the areas of public international law, international humanitarian law, law and politics in Eastern Europe and active transportation and the law. He has extensive human rights and election monitoring field experience in Eastern Europe and the former Soviet Union.
[i] Alexandra Flynn & Marianna Valverde, “Where the Sidewalk Ends: The Governance of Waterfront Toronto’s Sidewalk Labs Deal” (2019) 36 Windsor Yearbook of Access to Justice 263 at 265.
[ii] Allison J Egan & Robert C de Loë, "Thinking outside the “water box” in the Detroit River Area of Concern" (2020) 46 Journal of Great Lakes Research 1726.