下载掌阅APP，畅读海量书库
立即打开
Ben Boer
This paper focuses the legal aspects of the Sustainable Development Goals（SDGs）proposed by the United Nations. It argues that there is a need for strong legislative initiatives at national level in order to ensure that the seventeen SDGs are adequately supported and are comprehensively implemented.
The Sustainable Development Goals must be seen as a holistic package，because many of the Goals are integrally related. This also means that an integrated and principled approach should be taken to their legal implementation. We can no longer think in terms of institutional，economic，political and legal silos. However，in practice many countries continue to take sectoral approaches to address the conservation of the environment and the management of natural resources. At a national and provincial or state level，an integrated approach requires careful negotiation between governmental ministries and administrative departments to ensure that the concept of economic，environmental，social and cultural sustainability is clearly expressed in comprehensive and broadly agreed policy. This preparation of this policy is politically difficult，as it requires ministers and other politicians to take a whole of government approach rather than a sectoral approach. Every jurisdiction will have its own challenges in achieving a consistent sustainable policy. Nevertheless，common principles derived from international and national legal developments over the past 30 years，combined with concepts inherent in the SDGs，will provide appropriate policy directions. Once such a policy is agreed，the process of drafting robust and integrated legislation on environment protection and natural resource exploitation，although complex，can become more straightforward.
In the context of China，the SDGs are already consistent with the idea of promoting ecological civilization and are central to the theme of this Eco Forum Conference.
The Sustainable Development Goals form part of a United Nations New Agenda for Global Action . [2] The new Agenda states in its preamble：This Agenda is a plan of action for people，planet and prosperity that also seeks to strengthen the universal peace in larger freedom. All countries acting in collaborative partnership will implement the Agenda. We are resolved to free the human race from the tyranny of poverty and want and to heal and secure our planet for present and future generations. We are determined to take the bold and transformative steps needed to shift the world onto a sustainable path. As we embark on this collective journey，we pledge that no one will be left behind.
The new Agenda notes that it builds on the foundation of many other instruments and work，including Agenda 21 and the Rio Declaration on Environment and Development of 1992. [3] It refers to the Millennium Development Goals（MDGs），formulated in the early 1990s，and states that it “seeks to complete what the MDGs did not achieve”. It also notes that the new framework goes far beyond the MDGs. It includes “a wide range of economic and environmental objectives. It refers to taking an integrated approach，recognizing that there are deep interconnections and many cross-cutting elements across the new goals and targets”（para 10）. It sets out a wide range of challenges to sustainable development，including inequalities within and between states，disparities of opportunity wealth and power，unemployment，conflict，violence and extremism humanitarian crises and migration issues. It also recognizes the issues of natural resource depletion and environmental degradation，Including drought and the effects of climate change. It states，rather dramatically，but no doubt with good reason，that “The survival of many societies and of the planet itself is at risk”（para 12），In line with the theme of this paper，the new Agenda states that the challenges set out above are “inter-related and call for integrated solutions”. It states that a new approach is needed：“Sustainable development recognizes that eradicating poverty and inequality，preserving the planet and creating inclusive economic growth are linked to each other and interdependent”（para 13）.
The
Agenda
refers to its “supremely ambitious vision”，which would include “a world free of poverty，hunger，disease and want”. This means safe and nutritious food，and affordable drinking water，universal access to basic education and physical mental and social well-being. It calls for the “universal respect” for human rights，justice and equality，race and ethnicity，and equal opportunity（para 15）.
It is within the context of the challenges set out above that the SDGs and their 169 associated targets are introduced. The SDGs cover all major aspects of human endeavour and concern：Poverty，hunger，health，education，gender equality，water and sanitation，energy，economic growth and work，resilient infrastructure，inequality within and among countries，human settlements，consumption and production patterns，climate change，oceans，seas and marine resources，ecosystems，peace and access to justice，and global partnership for sustainable development. [5]
Each Goal includes a specific set of targets. Many of these targets are intended to be achieved either by the year 2020 or 2030.
The implementation of these goals and targets are addressed in the new Agenda document. The Agenda recognizes the difficulties of mobilizing the financial resources，capacity-building，technologies and the need for supportive policies and measures. It refers to overseas development assistance（ODA），the role of science and innovation，trade issues，inclusive domestic decision-making，the promotion of a new Global Partnership to achieve the goals and engagement of all stakeholders.（See I.Sustainable Development Goals and Targets，paras 30 to 37，and Ⅱ. Means of Implementation and the Global Partnership，paras 1 to 8）.
My concern here is with the legal underpinnings of the SDGs，without which the SDGs would be much less useful. We can note that several forceful statements appear with respect to the relevance of the rule of law，both in the introductory sections to the Agenda，as well as in individual SDGs. However，I would argue that，by themselves，these high-sounding legal statements are not a sufficient basis to guarantee adequate implementation of the SDGs.
First，the Agenda emphasizes that it is “guided by the purposes and principles of the Charter of the United Nations，including full respects for international law”（para 11）. It reaffirms the commitment of the world community to international law，emphasizing that the Agenda “will be implemented in a manner that is consistent with the rights and obligations of states under international law”（para 16）. These statements are not surprising，given the nature of the document and the context of promotion of sustainable development to which all countries have formally committed.
Subsequent paragraphs state that human rights，including the right to development，the rule of law and effective and accountable institutions are “fundamental requirements for the achievement of sustainable development”（para 28）. The centrality of the rule of law in the achievement of sustainable development has been widely recognized in recent times：for example，that “Achievement of the 17 specific SDGs currently proposed for adoption by the international community，depends on the strong rule of law and the application of enhanced environmental law.”
[6]
Similarly，the
Putrajaya Statement
，generated at a major international colloquium in Malaysia in 2013 urged that in order to further advance the development and implementation of environmental rule of law in the Region it is necessary to：“Emphasize that the rule of law，including environmental rule of law，must be an important consideration in the development of sustainable development goals. It supports the realization of all other goals and fairness to future generations”.
The 2015 revised Draft Covenant on Environment and Development also refers to the link between the rule of law and sustainable development.
[8]
Even the 2015 celebration of the 800 th anniversary of the signing of Magna Carta（Big Charter）and the subsequent Carta de Foresta（Forest Charter）have been seen as of relevance to the rule of law and sustainable development，emphasizing SDG15 on the protection，restoration and sustainable use of ecosystems in particular. [9]
In addition to the Agenda text，the Goals themselves also include specific references to the rule of law. Goal 16 is the most pertinent，“Promote peaceful and inclusive societies for sustainable development，provide access to justice for all and build effective，accountable and inclusive institutions at all levels” Goal 16 includes as one of its targets：“Promote the rule of law at the national and international levels and ensure equal access to justice for all”（Para 16.3），and “Promote and enforce non-discriminatory laws and policies for sustainable development”（para 16.12）.
While we see legal statements sprinkled throughout the text of the SDGs，there is no direct reference to ensuring that the goals are embedded in international law or in national legislation. Without language promoting the use of legal mechanisms in the text of the new Agenda and the SDGs，the world’s nations are not being put on notice that the basic tools of implementation，that is，the legal mechanisms，are missing. Without stronger statements in the new Agenda this may result in many governments’ignoring any particular goal or target if those governments finds it inconvenient to do so. As hinted at earlier，the new Agenda does reaffirm the commitments made in previous instruments and documents，including the Agenda 21 of 1992. [10] In Agenda 21，the provision of an effective legal and regulatory framework was specifically called for：8.13. Laws and regulations suited to country-specific conditions are among the most important instruments for transforming environment and development policies into action，not only through “command and control” methods，but also as a normative framework for economic planning and market instruments. In addition，we can note that in the next part of the same paragraph quoted above，Agenda 21 recognized the problem of fragmentation of environmental law. This is a problem that still exists today in a large number of countries. It stated：“…although the volume of legal texts in this field is steadily increasing，much of the law-making in many countries seems to be ad hoc and piecemeal，or has not been endowed with the necessary institutional machinery and authority for enforcement and timely adjustment”. An examination of environmental laws，especially in many developing countries，including Asia and Pacific， [11] reveals that the majority of environmental laws are still largely sectoral，being divided into pollution control，environmental impact assessment，planning，heritage conservation，national parks and biodiversity，etc. Few countries have attempted an integrated approach，with common principles，definition of terms and implementation and enforcement mechanisms.
Beginning from the premise that para 8.13 of Agenda 21 quoted above applies today to the implementation of the new Agenda for Global Action，the challenge for legal drafters is to ensure all of the basic concepts and principles found in the SDGs are adequately expressed in revised environmental legislation and implemented through coherent governmental institutional arrangements.
In China，we can note that the environmental laws passed by the central government have been revised a number of times. The Environment Protection Act 1989 was revised very recently.
Even though much remains to be done to improve its implementation，it is significant，in terms of the theme of this Conference，that Article 1 of the new law recognizes explicitly that：This Law is formulated for the purpose of protecting and improving environment，preventing and controlling pollution and other public hazards，safeguarding public health，promoting ecological civilization improvement and facilitating sustainable economic and social sustainable development（emphasis added）. This is an important beginning for the drafting of the next generation of environmental laws in China. In the coming phase of legal reform，it would be appropriate to examine the whole framework of the current environmental legislation to check how closely it conforms to the idea of promoting ecological civilization improvement and the SDGs. On the basis of that research，we might then see the drafting of comprehensive integrated legislation covering all major aspects of environment protection，including pollution，environmental impact assessment and biodiversity conservation.
An example of an integrated approach to environmental policy-making and legislative drafting is provided by Australia. A national policy on ecologically sustainable development（ESD）was agreed in 1992 through a federal，state and territory Intergovernmental Agreement on the Environment. It stated that ecologically sustainable development：…requires the effective integration of economic and environmental considerations in decision-making processes，in order to improve community well-being and to benefit future generations.
The Australian national legislation，entitled the Environment Protection and Biodiversity Conservation Act 1999，was drafted taking into account the concepts in the Intergovernmental Agreement，with the idea that an integrated national approach must be taken，based on principles of “ecologically sustainable development”.
[14]
Because Australia has a federal system of government，its states and territories are responsible for many aspects of environment protection and natural resource exploitation. Each state and territory government have taken a somewhat different approach to legislative drafting，but all of the governments have incorporated some forms of the principles of ecologically sustainable development. [15] Some jurisdictions have already had integrated pollution control legislation including land contamination，and water and noise pollution for many years. The Australian federal and state legislation might usefully be examined as a starting point for the drafting of legislation as both central and provincial government levels in China. However，other countries in Asia，Europe，North and South America could also be looked at from different approaches that achieve similar objectives to that of the Australian legislation
By early 2016，the United Nations will have concluded its deliberations on the form of the Sustainable Development Goals and the various targets and time limits to be set under each of the goals. This paper argues that in order to ensure the adequate implementation of these goals and targets，it is necessary to thoroughly examine governmental policies on environment protection and natural resource management in all of the world’s jurisdictions. If the legislation is judged to be inadequate in relation to its ability to deliver the SDGs goals and targets，I would suggest that commencement of a comprehensive process of reform of legislation at central and sub-national levels and the initiation of serious negotiations between the government ministries in order to ensure that comprehensive and integrated policies are generated and reflected in innovative new environmental legislation.
[2] Transforming our World by 2030： A New Agenda for Global Action http：//www.un.org/youthenvoy /2015/06/ zero-draft-outcome-document-adopt-post -2015- development-agenda /.
[3] Agenda 21 was formulated as part of Rio Conference on Environment and Development in 1992.
[5]
The complete SDG list is：
GOAL 1 End poverty in all its forms everywhere.
GOAL 2 End hunger，achieve food security and improved nutrition and promote sustainable agriculture.
GOAL 3 Ensure healthy lives and promote well-being for all at all ages.
GOAL 4 Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all.
GOAL 5 Achieve gender equality and empower all women and girls.
GOAL 6 Ensure availability and sustainable management of water and sanitation for all
GOAL 7 Ensure access to affordable，reliable，sustainable and modern energy for all.
GOAL 8 Promote sustained，inclusive and sustainable economic growth，full and productive employment and decent work for all.
GOAL 9 Build resilient infrastructure，promote inclusive and sustainable industrialization and foster innovation.
GOAL 10 Reduce inequality within and among countries.
GOAL 11 Make cities and human settlements inclusive，safe，resilient and sustainable.
GOAL 12 Ensure sustainable consumption and production patterns.
GOAL 13 Take urgent action to combat climate change and its impacts.
*
GOAL 14 Conserve and sustainably use the oceans，seas and marine resources for sustainable Development.
GOAL 15 Protect，restore and promote sustainable use of terrestrial ecosystems，sustainably manage forests，combat desertification，and halt and reverse land degradation and halt biodiversity loss.
GOAL 16 Promote peaceful and inclusive societies for sustainable development，provide access to justice for all and build effective，accountable and inclusive institutions at all levels.
GOAL 17 Strengthen the means of implementation and revitalize the global partnership for sustainable development.
[6] Shamshad Akhtar，Under-Secretary-General of the United Nations & Executive Secretary of The Economic and Social Commission for Asia and the Pacific，Keynote Address，“ Rule of Law to Support the Post -2015 Development Agenda and Sustainable Development Goals ” Asia-Pacific Roundtable：Environmental Rule of Law for Sustainable Development in Support of the Post-2015 Development Agenda，Bangkok，May 2015.
[8]
Affirming
the need for effective rule of law and the need for good governance at all levels in order to implement，enforce and monitor compliance with environmental obligations；
Responding
to the call for an integrated international legal framework to provide a consolidated ecological and ethical foundation for present and future international and national policies and laws on environment and sustainable development；International Union for Conservation of Nature（IUCN）and International Council on Environmental Law，
Draft Covenant on Environment and Development
，revised text February 2015.
[9] Nicholas Robinson， The Forest Charter ，in Daniel B.Magraw，et al.，Magna Carta and the Rule of Law（ABA，2014）；see also Daniel Magraw and Andrea Martinez，“Magna Carta and Sustainable Development” Winter 2015，Vol 44 No 1 International Law News ，Section of International Law American Bar Association；Goal 15 is dealt with below.
[10] It is worth remembering that China developed its own Agenda 21 in 1994，which is claimed to be the first national Agenda 21 action plan in the world；see Ye Wenhu， Chinese perspectives on Environment and Sustainable Development ，Brill 2013，p.135.
[11] For example，see Ben Boer “Introduction to ASEAN Environmental Law” in Werner Scholtz and Jonathan Verschuuren， Regional Environmental Law ： Transregional Comparative Lessons in Pursuit of Sustainable Development ，Edward Elgar 2015，251-281.
[14]
Section 3A of the Act sets out these principles：
（a）decision-making processes should effectively integrate both long-term and short-term economic，environmental，social and equitable considerations；
（b）if there are threats of serious or irreversible environmental damage，lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation；
（c）the principle of inter-generational equity—that the present generation should ensure that the health，diversity and productivity of the environment is maintained or enhanced for the benefit of future generations；
（d）the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making；
（e）improved valuation，pricing and incentive mechanisms should be promoted.
Environment Protection and Biodiversity Conservation Act 1999 at http：//www.environment.gov.au/epbc/about and http：//www.austlii.edu.au/au/legis/cth/consol_act/epabca1999588/.
[15] Gerry Bates， Environmental Law in Australia Lexis/Nexus Buttterworths，8 th edition，2013 pp.219-260.