The Law-Sustainable Development Nexus in the Agenda 2030 and European Consensus for Development: Substance, Deficiencies and the Future.

• Author: Rabinovych, Maryna

Introduction

Building on Millennium Development Goals (MDGs) and the follow-up to the Rio+20 Conference on Sustainable Development, the Agenda 2030 represents the novel global governance approach, based on 17 consensual non-binding Sustainable Development Goals (SDGs) and multiple targets and indicators regarding their implementation (UN, 2015). In substantive terms, the Agenda is founded on the sustainable development concept, encompassing growth, environment protection and social cohesion components (UN, 2015). In implementation terms, the Agenda is distinguished by its integrated approach to sustainable development, including inter alia the emphasis on the inter-linkages between the Goals, cross-cutting areas of development (e.g., trade, technology and finance) and Policy Coherence for Sustainable Development (PCSD) (UN, 2015). Following its attempt at policy integration, the Agenda underlines the role of 'peaceful, just and inclusive societies', good governance, rule of law, and human rights in ensuring sustainable development (UN, 2015).

According to the Commission's Communication 'Next Steps for a Sustainable European Future. European Action for Sustainability', 'the EU is fully committed to be a frontrunner in implementing the 2030 Agenda and the SDGs, together with its Member States, in line with the subsidiarity principle' (European Commission, 2016). Moreover, pursuant to the Lisbon Treaty, the EU's fundamental values (democracy, human rights, the rule of law) acquired the status of the guiding principles and the general objectives of the Union's external action (TEU, Art.2). This means the EU institutions' legal obligation to streamline the promotion of fundamental values into the whole spectrum of the Union's external action, including its development policy. Furthermore, similar to the Agenda 2030, the Communication and the new European Consensus on Development underlined the need for a more systemic integration of EU's external policies (foreign policy, development, trade and investment etc.), aimed at implementing the Agenda 2030 and the general objectives of the EU external action (European Commission, 2016) (Council of the EU et al, 2017). Hence, both the Agenda 2030 and the EU's documents, directed to its implementation, are expected to shed light on the substance of the interplay between different objectives and policies at the global and the EU level, respectively.

In view of the above, this paper seeks to explore the substance of the nexus between law and sustainable development in the Agenda 2030 and the new European Consensus on Development. The focus on the law-sustainable development nexus is relevant not only due to the above mentioned attempt at policy integration globally and at the EU level, but also with respect to the dynamically evolving debate on the interplay between law and economic development under the auspices of the economics of development. The economics of development is understood here as a branch of economics that aims to answer two key questions: "Why do some countries develop earlier than others?" and "Why do some countries fail to develop while others are successful?"(Roland, 2016, p.3) The paper demonstrates the cyclical nature of the representations of the law-economic development nexus in leading post-war development economics theories over the 1950s to 1980s period, and emphasises the governance and "legal turn" in development economics since the 1990s. The recourse to theories that focus on macroeconomic factors, rather than law and institutional development (e.g., dependency and world systems), is determined by our intention to showcase the cyclicality of the role, attributed to law in development economics, before the 1990s. It is argued that the importance of mapping the substance of the law-sustainable development nexus in the Agenda 2030 and the new Consensus, and reinforcing its role in SDGs' implementation is inter alia determined by the contemporary recognition of the pivotal role law and institutions play in promoting economic development.

The analysis is structured as follows. First, the paper elaborates on the notions of 'sustainable development' and 'law'. The central part of the study explores the variety of approaches to the law-sustainable development nexus in the abovementioned development economics theories, and applies respective insights to the cases of the Agenda 2030 and the new European Consensus on Development, attempting to distinguish the key drawbacks and inefficiencies of the respective inter-linkages. Finally, the study suggests several policy recommendations on improving the implementation of SDGs through reinforcing the law-sustainable development nexus therein.

2. Sustainable Development and the Different Faces of Law in Development Economics

   This section of the article aims to discuss the concepts of "sustainable development" and "law"" for the purposes of this paper, from the global and EU perspectives.

   2.1 Sustainable Development: More Development and Less Sustainability?

   The Concept of Sustainable Development: Global Policy and Legal Debate

   According to Du Pisani (2007), the modern concept of development is rooted in the idea of progress, inextricable from the history of Western modernity. In particular, the idea of progress, associated with 'modern, empirical and exact science', dominated the era of Enlightenment and its aftermath. The Industrial Revolution of the 18th century broadened the earlier visions of progress by linking it to economic growth and material advancement. Requiring an ever-increasing consumption of raw materials, the Industrial Revolution also gave rise to the debate about the responsible use of non-renewable resources (Du Pisani, 2007, p.85). Almost a century before the adoption of the Brundtland Report, Alfred Russel Wallace (1898) included a chapter on the "plunder of Earth" in his essay 'Our Wonderful Century' to condemn the uncontrolled extraction of mineral resources and exploitation of forests. The consequences of over-extraction of coal and oil have been continuously discussed in the 20th century, also in conjunction with the debates regarding the effects of population growth about the limits of economic growth (Du Pisani, 2007).

   Consolidated in the 1970 Report of the Club of Rome, the idea of the limits of growth, stemming from population growth, industrialisation and uncontrolled extraction of resources, represented a key impetus to the search for an alternative to unrestricted growth (Meadows et al, 1970). Hence, in the Declaration of the 1972 UN Conference of the Human Environment, held in Stockholm, it was stipulated that 'a point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences' (United Nations Conference on the Human Environment, 1972). In this view, the Stockholm Conference Declaration introduced 26 'principles for the preservation and improvement of the human environment' and 109 recommendations for their implementation. Pursuant to David Wirth (1995), the Declaration represents 'a forward-looking instrument that was intended to provide a springboard for the future development of environmental law and policy' (p.611). Such position stems inter alia from Stockholm Principle 22, stating that 'States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage, caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction' (United Nations Conference on the Human Environment, 1972, p.2). Not referring to the concept of sustainable development per se, the Declaration, however, has been an important soft law framework in the domains of environmental preservation, conservation and the mitigation of negative environmental effects.

   The 1987 Brundtland Commission's Report 'Our Common Future', identified economic growth, environmental protection and social equity as the key components of sustainable development. The Report distinguished twenty-two principles of sustainable development, such as the individual's right to adequate environment, transboundary pollution, intergenerational equity, international cooperation, prior consultation, exchange of information and environmental impact assessment (World Commission on Environment and Development, 1987). While collectively these principles were intended as components of a draft binding document on sustainable development, they were once again reflected in soft law instruments - the 1992 Rio Declaration on

   Environment and Development and the Agenda 21. Based on the three-dimensional model, presented in Brundtland Commission's Report, both documents are directed to promoting the global governance for sustainable development, strengthening the role of various stakeholders (e.g., women, children, civil society groups, workers and trade unions) and improving the means of implementation (UN Conference on Sustainable Development, 1992) (UN Conference on Environment and Development, 1992a). Representing a consensual, non-binding, aspirational document of the 'governance through goals', the Agenda 2030 is also founded on the three-dimensional understanding of sustainable development. Notwithstanding the fact that this implies the equal value of economic growth, environmental protection and social inclusiveness, 'the SDG document continues to emphasise growth in its interpretation of sustainable development' (Gupta and Vegelin, 2016) (Frey and McNaughton, 2016). Furthermore, Gupta and Vegelin (2016) underline that the Agenda connects social inclusiveness aspect of economic growth solely to the labour-related targets, thus, narrowing the scope of the interplay between growth and inclusiveness. Analysing the global and EU experience of environmental policy integration, Adelle and Nilsson emphasise the 'softness' of...