On 25 September 2015, Heads of State and Government from the 193 Member States of the United Nations gathered at the 70th Session of the UN General Assembly in New York to adopt the 2030 Agenda for Sustainable Development, a “comprehensive, far-reaching and people-centred set of universal and transformative Goals and targets” which will “stimulate action over the next fifteen years in areas of critical importance for humanity and the planet”.
In its essence, the outcome document of the UN Sustainable Development Summit (which contains the much-heralded Sustainable Development Goals) delineated a policy framework concerned with mobilizing efforts at the international, national and subnational level around a set of common priorities relating to sustainable development, and by doing so, it then sought to address challenges as diverse and ambitious as ending poverty and hunger, combating inequalities, building peaceful and inclusive societies, promoting human rights, and ensuring the protection of the planet and its natural resources.
From this perspective, the adoption of the SDGs represented an unprecedented effort not only to move away from a development agenda still heavily dominated by a narrow focus on the economic and social components (something which is evident in the design -and failures– of the Millennium Development Goals), but also to positively identify the reciprocal interactions between the various components of sustainable development that must be taken into account by States at the stage of implementation. This effort, in turn, will now require transformative changes in the way all sectors of society deal with the above-mentioned challenges: from the economy to life sciences to law, existing institutions and systems of rules will be called upon to remove the obstacles to sustainable development and actively promote the achievement of the 17 Goals and 169 targets.
As a legal scientist with strong interests in the field of the environment, I believe that legal regimes are particularly bound to interact with the 2030 Agenda, and that ensuring a mutually supportive relationship between them will be necessary if human development is to stay within the Earth’s planetary boundaries in the next fifteen years and beyond. While I will explore this topic more in depth in an upcoming journal article which I am currently writing with Professor Riccardo Pavoni of the University of Siena (Italy), here I want to highlight the important governance function that international environmental law can play in the implementation of the ‘environmental’ goals and targets contained in Resolution 70/1. In fact, on the one hand, as recently maintained by the UNEP, violations of international environmental law “have the potential to undermine sustainable development and the implementation of agreed environmental goals and objectives at all levels”. On the other, international environmental law constitutes the normative backbone of many (possibly all) of the SDGs, in the sense that institutional and legal developments in the field of the environment can either “foster” or “frustrate” such goals, and that the development of innovative legal approaches, coupled with increased stakeholder engagement, is necessary to accommodate environmental protection concerns in the operationalization of the 2030 Agenda.
Indeed, it seems prohibitive to outline all the potential challenges that international environmental law will have to address in order to enable a mutually supportive relationship with the post-2015 development framework. Moreover, it could be convincingly argued that the underlying problem in this respect will remain the lack of integration between international environmental law and different legal regimes, with a strong emphasis on areas such as trade and investment law and human rights. At the same time, it appears possible, when examining the content of the 2030 Agenda in the context of other recent developments both in the activities of the UNGA and generally in international environmental law, to pinpoint at least some of these recurring challenges. Pavoni and I hold nine of them to be particularly important. More specifically, four are concerned with substantive issues (broadly corresponding to SDGs 12-15) while the rest mainly relates to procedural elements, means of implementation, and shortcomings in the general architecture of international environmental law.
The four substantive challenges are: (i) swiftly implementing the Paris Agreement on climate change and ensuring that commitments contained in the Intended Nationally Determined Contributions (INDCs) of the Parties remain ambitious on a pathway to the decarbonization of the economy by 2050; (ii) developing a new regime for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction under the UN Convention on the Law of the Sea, as currently mandated by Resolution 69/292 of the General Assembly; (iii) strengthening integration within international environmental law by promoting the definition of linkage-based plans, policies and programmes, with a particular focus on the widespread adoption of an ecosystem-based approach to environmental protection, increased consideration of the underlying drivers of biodiversity loss and ecosystem destruction, and the role of environmental impact assessment (EIA) laws; and (iv) advancing a holistic approach to the management of chemicals and waste under existing international conventions and developing new multilateral agreements on the subject, where needed. Taken together, these challenges continue to highlight major gaps in international environmental law, and addressing them would also mean achieving concrete progress around at least five critical planetary boundaries, including climate change, biosphere integrity, land-system change, and introduction of chemicals, nanomaterials, and other novel substances.
The remaining topics emphasize the need to further advance key procedural norms and to strengthen the means of implementation in legal regimes in the field of the environment. Most of them reflect long-standing normative trends in the development of international environmental law, while others represent relatively new topics lying at the intersection of law and policy which must increasingly inform the development of multilateral environmental agreements and the evolution of already existing institutions and regimes. They are: (i) harnessing foreign direct investment, official development assistance, and domestic finance for environmental protection, including through further promotion of the role of market-based instruments such as payments-for-ecosystem-services schemes (PES), consistent with the vision outlined in the Addis Ababa Action Agenda; (ii) increasing capacity-building in, and technology transfer to developing countries in order to operationalize the global indicator framework and, more generally, foster conservation and sustainable use efforts (i.e. in terms of establishment, management and effective monitoring of protected areas); (iii) reinforcing science-policy interfaces and bolstering the role of intergovernmental platforms in building capacity for the effective use of science in law- and decision-making at all relevant levels (i.e. in terms of the assessment and accounting of the economic value of ecosystem services); (iv) enhancing public participation in decision-making and access to justice and information as an indispensable component in the implementation of the procedural and substantive environmental rights of individuals and communities, as most recently urged at Rio+20; and (v) advancing liability regimes at the domestic and international level (but also, more generally, non-compliance procedures), particularly by moving away from the traditional rules of State responsibility in favor of more stringent civil liability rules.
It should be noted that it was not by chance that I reserved these two essential aspects for last. On the one hand, despite the message contained in Principle 10 of the Rio Declaration, progress on the topics of public information and participation and access to justice remains uneven, held hostage by geographical differences in the way human rights are being re-considered, translated into law and interpreted from an environmental perspective. As a consequence, it will be important to ensure that ambitious regional achievements on this topic, such as the Aarhus and Espoo Conventions, which provide for key procedural rights in the field of the environment, inform significant developments in other parts of the world. On the other hand, more than 20 years after the proclamation of Rio Principle 13 on liability and compensation, the emergence of rules of strict State liability and civil liability regimes in domestic legislation and/or multilateral environmental agreements continues to be undermined by the conflicting perspectives of States on issues such as the very definition of environmental damage, the role of the State in redress, the burden of proof, the scope of compensation, the limits of liability, and so forth. That these problems were carefully ignored in the drafting of the SDGs (not to mention the specific provision excluding liability and compensation contained in paragraph 52 of the decision adopting the Paris Agreement) bears further testimony to the steep task placed upon international environmental law in the implementation of the 2030 Agenda.
[Use the following citation when quoting from the article: Riccardo Pavoni and Dario Piselli, ‘Sustainable Development Goals and International Environmental Law: Normative Value and Challenges for Implementation’ (2016) forthcoming]
Dario Piselli 