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”.
The 2030 Agenda, which represents the outcome document of the UN Sustainable Development Summit (and contains the much-heralded Sustainable Development Goals), delineates a policy framework to mobilize efforts at the international, national and subnational level around a set of common sustainable development priorities. It seeks to address challenges from ending poverty and hunger, combating inequalities, building peaceful and inclusive societies to promoting human rights, and ensuring the protection of the planet and its natural resources.
The adoption of the SDGs represented an unprecedented effort to move away from a development agenda heavily dominated by a narrow focus on the economic and social components (such a focus was evident, for example, in the design – and failures – of the Millennium Development Goals). Further, adopting the SDGs is an attempt to positively identify the reciprocal interactions between the various components of sustainable development that States should consider during implementation.
The shift towards more inclusive development goals will now require transformative changes in the way society deals with the above-mentioned challenges: from the economy to life sciences to law, existing institutions and systems of rules must remove the obstacles to sustainable development and actively promote the achievement of the 17 Goals and 169 targets.
Legal regimes are particularly important in this process, as they are bound to interact with the 2030 Agenda. More specifically, there is an 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, 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”. International environmental law, in addition, constitutes the normative backbone of many of the SDGs. Institutional and legal developments in the field of the environment can either foster or frustrate such goals, and the development of innovative legal approaches, coupled with increased stakeholder engagement, is necessary to accommodate environmental protection in the operationalization of the 2030 Agenda.
There are nine challenges that seem particularly important to address. Four of these deal with substantive issues (broadly corresponding to SDGs 12-15) while the rest relate 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 on an ambitious 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 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. Others represent relatively new topics lying at the intersection of law and policy that must increasingly inform the development of multilateral environmental agreements and the evolution of 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 on Financing for Development; (ii) increase 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; (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. 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, 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 the final two aspects are reserved for last. Despite the message contained in Principle 10 of the 1992 Rio Declaration on Environment and Development, 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 agreements in other parts of the world.
Liability rules must be improved as well. 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. 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, and the limits of liability have so far impeded progress toward any commonly agreed standard. Most recently, the Decision adopting the Paris Agreement excluded any form of liability and compensation under the new climate change regime.
That these problems were carefully ignored in the drafting of the SDGs bears further testimony to the steep task placed upon international environmental law in the implementation of the 2030 Agenda.
Image courtesy of UN Photo/Cia Pak. Originally published by S&S on April 8, 2016.