See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/301666563

The Nexus between International Law and the Sustainable Development Goals

Article  in  Review of European Community and International Environmental Law · April 2016

DOI: 10.1111/reel.12148

CITATIONS READS

43 5,437

1 author:

Rakhyun E. Kim
Utrecht University
64 PUBLICATIONS   1,056 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Sustainable Development Goals as Governance Innovation View project

Problem-Shifting between International Environmental Treaty Regimes: Causes, Consequences, and Solutions (ERC Starting Grant) View project

All content following this page was uploaded by Rakhyun E. Kim on 23 October 2017.

The user has requested enhancement of the downloaded file.

bs_bs_banner

Review of European Community & International Environmental Law

RECIEL 25 (1) 2016. ISSN 2050-0386 DOI: 10.1111/reel.12148

The Nexus between International Law and

the Sustainable Development Goals
Rakhyun E. Kim*

The 17 Sustainable Development Goals (SDGs) and 169 with a view to harness the nexus for global sustainabil-
targets did not emerge from, and were not inserted into, ity.
a normative vacuum. They are grounded in inter-
national law and made consistent with existing commit- First, are the SDGs instrumental in orchestrating various
ments expressed in various international legal international institutions towards the ultimate objective
instruments. Naturally, a nexus exists between inter- of sustainable development? Immersed in their own
national law and these global priorities. This article mandates and objectives, most international institutions
explores how to harness that nexus for sustainability. It operate in relative isolation and may pursue competing
examines to what extent the SDGs might be instrumental interests.3 Some commentators have suggested that goal-
in orchestrating international institutions towards the setting – as a governance strategy to prioritize, motivate
common objective of sustainable development, and how and provide direction – could help reform or rearrange
international law provides a normative environment for existing institutions so as to enhance their overall per-
the SDGs. The article argues that, although self-pro- formance in promoting sustainable development.4 How
claimed as integrated and indivisible, the SDGs and tar- effective are the SDGs likely to be in lending coherence
gets reflect the fragmented structure of international to what otherwise might be a disparate and even incon-
law, and therefore would have limited utility for orches- sistent collection of institutional arrangements? Will the
tration. The article then discusses how international law, SDGs bring into line existing regimes and organizations
despite its fragmented nature, provides integration tools that are established for different purposes?
that could address trade-offs between competing targets
in a principled manner. A clear, long-term vision for sus- Second, is international law likely to be helpful for the
tainable development beyond 2030 is a necessary but implementation of the SDGs in an integrated manner?
absent leverage point in the SDG framework. It would Despite being self-proclaimed as ‘integrated and indi-
define the point where the interacting SDGs and targets visible’,5 the SDGs themselves have been criticized for
should ultimately converge. lacking coherence.6 This is a concern because the ex-
periences with the Millennium Development Goals
(MDGs) have shown that addressing such governance
goals independently may lead to unintended conse-
INTRODUCTION quences.7 Some MDG targets were met,8 but the spirit
of the MDGs was not. Then, to what extent and in what
The 17 Sustainable Development Goals (SDGs) and 169 ways could international law, despite its fragmented
targets did not emerge from, and were not inserted into, nature, integrate the SDGs and targets and help achieve
a normative vacuum.1 They are grounded in inter- long-term sustainable development?9
national law and made consistent with existing commit- 3
Fragmentation of International Law: Difficulties Arising from the
ments expressed in various international agreements Diversification and Expansion of International Law – Report of the
and other soft law instruments. Naturally, a nexus Study Group of the International Law Commission (UNGA Doc.
exists between international law and the SDGs. What is A/CN.4/L.682, 13 April 2006) (‘ILC Study Group report’).
4
the nature of their relationship? To what extent, and in N. Kanie and F. Biermann (eds.), Governance through Goals: New
Strategies for Sustainable Development (MIT Press, 2016, forthcoming).
what ways, could international law and the SDGs com- 5
The 2030 Agenda, n. 1 above, at paragraph 5.
plement each other to enhance systems integration?2 6
ICSU and ISSC, Review of Targets for the Sustainable Development
This article explores these questions in two directions Goals: The Science Perspective (International Council for Science, 2015).
7
D. Griggs et al., ‘An Integrated Framework for Sustainable Develop-
* Corresponding author. ment Goals’, 19:4 Ecology and Society (2014), 49.
8
Email: [email protected] United Nations, The Millennium Development Goals Report 2015
1
Transforming Our World: The 2030 Agenda for Sustainable Devel- (United Nations, 2015).
9
opment (UNGA Resolution A/RES/70/1, 21 October 2015) (‘The 2030 Similar questions were raised in the context of the MDGs in E. Hey,
Agenda’). ‘The MDGs, Archeology, Institutional Fragmentation and International
2
Systems integration refers to ‘holistic approaches to integrating vari- Law: Human Rights, International Environmental and Sustainable
ous components of coupled human and natural systems’. J. Liu et al., (Development) Law’, in: H.R. Fabri, R. Wolfrum and J. Gogolin (eds.),
‘Systems Integration for Global Sustainability’, 347:6225 Science Select Proceedings of the European Society of International Law,
(2015), 1258832-1, at 1258832-1. Volume 2, 2008 (Hart, 2010), 488.
ª 2016 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

15
RAKHYUN E. KIM RECIEL 25 (1) 2016

The article starts with an overview of the relationship Agenda for Sustainable Development, which contains
between international law and the SDGs. It examines the SDGs, is guided or informed by a number of inter-
how the SDGs could be instrumental in orchestrating national legal instruments.14 Specifically mentioned
international institutions. The analysis is conducted at instruments include the UN Charter,15 the Universal
three levels: orchestration within a goal, within a goal Declaration of Human Rights16 and the Rio Declaration
cluster and across the three dimensions of sustainable on Environment and Development.17 In a number of
development. The article then reviews the concept of sus- cases, international agreements from which the SDG
tainable development in international law by focusing on targets were derived can be identified by the wording of
how it has been interpreted and applied as a principle of the targets.18 For example, target 15.7 for ending poach-
integration by international courts and tribunals. It gives ing and trafficking of protected species is traceable to
a few hypothetical examples where the principle could be the objective of the Convention on International Trade
used to address normative conflicts among the SDGs and in Endangered Species of Wild Fauna and Flora.19
targets. The article concludes that a clear, long-term
vision for sustainable development beyond 2030 is a nec- However, not all existing international commitments
essary but absent leverage point in the SDG framework. have made it into the new Agenda. The SDGs and tar-
This vision, ideally expressed in the form of a sustainabil- gets are intended to ‘stimulate action over the next 15
ity grundnorm, would define the point where the inter- years in areas of critical importance for humanity and
acting goals and targets should ultimately converge. the planet’,20 hence they focus on and address priority
areas.21 For example, no goal or target for addressing
stratospheric ozone depletion was adopted, despite the
Ozone Secretariat’s effort to embed ozone protection in
THE RELATIONSHIP BETWEEN the 2030 Agenda.22 This is probably because the Mon-
INTERNATIONAL LAW AND THE treal Protocol has been a success in phasing out the use
SUSTAINABLE DEVELOPMENT of ozone-depleting substances, and ozone depletion is
no longer considered as an issue that requires urgent
GOALS attention.23
Since the late 1980s, sustainable development has
The SDGs and targets are, therefore, best conceptual-
emerged as a collective goal of the world community,
ized as a subset of existing intergovernmental commit-
and international law has been gradually aligning to it.10
ments. The natural fit between the SDGs and
The adoption of the SDGs through a United Nations
international law suggests some degree of commitment
(UN) Member-State-led process with civil society
on either side to combine the two approaches to achieve
participation provides an opportunity to further reinforce
sustainable development. On the one hand, as many of
the legal status of the sustainable development concept.
the targets are already embedded in various inter-
The SDGs themselves are political goals, not legal rules.
national agreements, the SDGs, to the extent they are
However, the substance that the SDGs reflect (some of
truly integrated, could serve as a ‘coordinating and syn-
which are international custom11 ) and the process by,
and form in, which they were adopted indicate that at 14
The Future We Want, n. 10 above, at paragraphs 10–12.
least some SDGs or targets may qualify as soft law.12 15
Charter of the United Nations (San Francisco, 26 June 1945; in
force 24 October 1945).
16
The SDGs were established, and are to be implemented, Universal Declaration of Human Rights (UNGA Resolution A/RES/
3/217A, 10 December 1948).
in a manner that is consistent with the rights and obli- 17
Rio Declaration, n. 10 above.
gations of States under international law.13 The 2030 18
‘Compendium of Existing Goals and Targets under the 19 Focus
Areas being Considered by the Open Working Group’, found at:
10
Report of the World Commission on Environment and Development <http://www.stakeholderforum.org/fileadmin/files/Compendium%20of
(UN Doc. A/42/427, 4 August 1987), Annex (‘Our Common Future’); %20existing%20targets%20and%20indicators.xlsx>; M. Gehring,
Rio Declaration on Environment and Development (UN Doc. A/ ‘Sustainable Development Goals and the Law’, found at: <http://
CONF.151/26/Rev.1 (Vol. I), 14 June 1992), Annex (‘Rio Declaration’); www.dfg.de/download/pdf/dfg_im_profil/geschaeftsstelle/dfg_praesenz
Plan of Implementation of the World Summit on Sustainable Develop- _ausland/nordamerika/2015/150421_dfg_unu_konferenz/04_01_gehr-
ment (UN Doc. A/CONF.199/20, 4 September 2002), Annex; The ing.pdf>.
19
Future We Want (UNGA Resolution A/RES/66/288, 11 September Convention on International Trade in Endangered Species of Wild
2012), Annex. Fauna and Flora (Washington, DC, 3 March 1973; in force 1 July
11
Some scholars argue that the MDGs have the status of international 1975) (‘CITES’).
20
customary law. See, e.g., G. Nankani, J. Page and L. Judge, ‘Human The 2030 Agenda, n. 1 above, at preamble.
21
Rights and Poverty Restriction Strategies: Moving towards Conver- The Future We Want, n. 10 above, at paragraph 247.
22
gence?’, in: P. Alston and M. Robinson (eds.), Human Rights and Embedding Ozone Protection in the Sustainable Development
Development: Towards Mutual Reinforcement (Oxford University Agenda: Note by the Secretariat (UN Doc. UNEP/OzL.Pro.WG.1/33/
Press, 2005). INF/4, 21 June 2013).
12
€rer, ‘Soft Law’, in: R.
On the concept of soft law, see, e.g., D. Thu 23
Montreal Protocol on Substances that Deplete the Ozone Layer
Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Montreal, 16 September 1987; in force 1 January 1989). See, e.g.,
(Oxford University Press, 2009). J.A. Ma€der et al., ‘Evidence for the Effectiveness of the Montreal Pro-
13
The Future We Want, n. 10 above, at paragraph 58(a); The 2030 tocol to Protect the Ozone Layer’, 10 Atmospheric Chemistry and
Agenda, n. 1 above, at paragraph 18. Physics (2010), 12161.
ª 2016 John Wiley & Sons Ltd

16
RECIEL 25 (1) 2016 INTERNATIONAL LAW AND THE SDGs

thesizing framework’ for addressing the fragmentation ent set of priorities. The SDGs could potentially have a
of international law.24 On the other hand, international positive effect by serving as an orchestration tool for
law provides a normative context in which the SDGs achieving systems integration. Certain principles of
and targets should operate and interact with each international law such as the principle of integration
other.25 may provide normative guidance as to how the goals
and targets should relate to each other, and thereby
There is, however, at least one potentially negative con- avoiding ‘a state of normative anarchy’.33
sequence of deriving the goals and targets from existing
intergovernmental commitments: the SDGs mirror the
fragmented and compartmentalized structure of inter-
national law.26 While acknowledging the importance of THE SUSTAINABLE DEVELOPMENT
addressing interlinkages,27 States have maintained the GOALS FOR ORCHESTRATING
functionalist thinking that underpins the UN system.28 INTERNATIONAL AGREEMENTS
In other words, ‘siloization’ is precisely what the SDGs
are supposed to counteract, but the SDGs themselves The traditional approaches to resolving treaty conflicts,
are presented using a silo approach.29 The drafters did as set out in the Vienna Convention on the Law of Trea-
not employ systems thinking when goal-setting and ties,34 have been constrained to treaty interpretation and
ended up forming a list of equally important global pri- conflict resolution principles such as lex specialis and lex
orities.30 The non-hierarchical organization of the SDGs posterior.35 Many consider these tools are insufficient to
is problematic because the goals and targets interact. provide adequate solutions in the event of a normative
While some targets are interdependent or reinforce conflict among sustainable development priorities.36 As
each other, some impose constraints on others.31 Criti- an alternative to the legal approach, goal-setting has been
cal trade-offs will not be uncommon. Just like different suggested as a potentially effective tool under certain con-
objectives of international agreements point in different ditions for orchestrating international agreements and
directions and may come into conflict, some of the institutions.37 The concept of orchestration generally
SDGs and targets themselves are likely to compete for refers to ‘efforts at arranging different elements of a sys-
scarce resources or shift, rather than solve, problems. tem in harmony with each other so as to enhance their
In the absence of an internal mechanism to enhance collective performance’.38 In the global governance litera-
synergies or address trade-offs, it is conceivable that, ture, the concept has been used more precisely as a refer-
even in an ideal world where all the SDG targets are met ence to a governance strategy of an international
individually, the outcome may not necessarily be the organization that works indirectly through other inter-
desired state of sustainable development.32 mediary actors in pursuit of its own goals.39 A number of
orchestrators exist in the field of sustainable development
In order to make the whole (the SDG framework) including treaty bodies, liaison groups, UN agencies and
greater than the sum of its parts (the goals and targets), intergovernmental forums. The usefulness of the SDGs in
the SDGs will need to be developed into a more coher- terms of orchestration can be examined at three different
levels of analysis, that is, orchestration within an SDG,
24
See D. Griggs et al., n. 7 above, at 6. across a few SDGs in the same goal cluster,40 and across
25
On international law as a normative system, see, e.g., R. Higgins,
Problems and Process: International Law and How We Use It (Oxford
University Press, 1994). 33
ICJ 25 September 1997, Gabcıkovo-Nagymaros Project (Hungary
26
See, e.g., ILC Study Group report, n. 3 above; J. Pauwelyn, ‘Frag- v. Slovakia), [1997] ICJ Rep 7 (‘Gabcıkovo-Nagymaros’), at 90.
34
mentation of International Law’, in: R. Wolfrum, n. 12 above. For a dis- Vienna Convention on the Law of Treaties (Vienna, 22 May 1969; in
cussion on the difference between fragmentation and force 27 January 1980).
35
compartmentalization, see K. Bosselmann, ‘Losing the Forest for the C.J. Borgen, ‘Treaty Conflicts and Normative Fragmentation’, in:
Trees: Environmental Reductionism in the Law’, 2:8 Sustainability D.B. Hollis (ed.), The Oxford Guide to Treaties (Oxford University
(2010), 2424. Press, 2012), 448; A. Sadat-Akhavi, Methods of Resolving Conflicts
27
The 2030 Agenda, n. 1 above, at preamble. See also target 17.14 between Treaties (Kluwer Law International, 2003).
36
for enhancing policy coherence for sustainable development. See, e.g., R. Wolfrum and N. Matz, Conflicts in International Envir-
28
See E. Hey, n. 9 above. onmental Law (Springer, 2003); C. Voigt, Sustainable Development
29
S. Bernstein, ‘The United Nations and the Governance of Sustain- as a Principle of International Law: Resolving Conflicts between Cli-
able Development Goals’, in: N. Kanie and F. Biermann, n. 4 above; mate Measures and WTO Law (Martinus Nijhoff, 2009); H. van Asselt,
ICSU and ISSC, n. 6 above. The Fragmentation of Global Climate Governance: Consequences
30
On systems thinking, see, e.g., D.H. Meadows, Thinking in Sys- and Management of Regime Interactions (Edward Elgar, 2014).
37
tems: A Primer (Chelsea Green, 2008). A. Underdal and R.E. Kim, ‘The Sustainable Development Goals
31
See ICSU and ISSC, n. 6 above. and Multilateral Agreements’, in: N. Kanie and F. Biermann, n. 4
32
Indicators ‘may sometimes provide inconsistent or even conflicting above.
perspectives on progress’. Ibid., at 86. See also J. Lyytimä ki and U. 38
Ibid.
Rosenströ m, ‘Skeletons Out of the Closet: Effectiveness of Concep- 39
K.W. Abbott et al. (eds.), International Organizations as Orches-
tual Frameworks for Communicating Sustainable Development Indica- trators (Cambridge University Press, 2015).
40
tors’, 16 Sustainable Development (2008), 301; L. Pinté r et al., The classification of the SDGs is adapted from R. Costanza et al.,
‘Bellagio STAMP: Principles for Sustainability Assessment and Meas- ‘An Overarching Goal for the UN Sustainable Development Goals’,
urement’, 17 Ecological Indicators (2012), 20. 5 Solutions (2015), 13.
ª 2016 John Wiley & Sons Ltd

17
RAKHYUN E. KIM RECIEL 25 (1) 2016

the economic, social and environmental goals of sustain- the specific objectives of several biodiversity-related
able development. conventions.48 Similarly, Goal 14 reinforces the marine
environment treaty cluster around the UN Convention
on the Law of the Sea (UNCLOS),49 the implementation
of which is mentioned as a critical factor for achieving
WITHIN A GOAL the goal.50 On the other hand, however, because most
Goal 13 on ‘climate action’ makes it clear that the UN targets were derived from existing commitments under
Framework Convention on Climate Change (UNFCCC) international agreements, treaty bodies or other
is ‘the primary international, intergovernmental forum intergovernmental organizations might actually resist
for negotiating the global response to climate governance embedded in goal-setting at a higher
change’.41 In a recent decision adopting the Paris level.51
Agreement, the Conference of the Parties to the
UNFCCC welcomes the adoption of the SDGs with
special reference to Goal 13.42 This reciprocal acknowl-
edgement reaffirms the centrality of the UNFCCC in
WITHIN A GOAL CLUSTER
the emerging polycentric climate governance system.43 The SDGs have not been formally classified as one of
Its treaty bodies such as the secretariat and the Con- economic, social and environmental goals, but Goals 13,
ference of the Parties can be seen as key orchestrators, 14 and 15 have been commonly identified as forming an
which work indirectly through intermediaries to gov- environmental goal cluster. Do these three goals
ern a third set of actors (the targets),44 in pursuit of together help international organizations such as
the ultimate objective of the UNFCCC.45 However, it the UN Environment Programme to orchestrate
remains unclear what added values Goal 13 might international institutions in pursuit of a common en-
bring to global climate governance, especially when vironmental objective? Orchestration of international
the ambiguously worded targets provide no clear guid- environmental agreements is critical because ‘Earth is a
ance. single, complex, integrated system’ with planetary
boundaries operating as an interdependent set.52 At the
The targets for Goals 14 and 15 on ‘life below water’ and same time, institutional fragmentation is particularly
‘life on land’, respectively, fall within the mandates of a pervasive in international environmental law where
number of key multilateral environmental agreements. there is a plethora of agreements, but no clearly identi-
In relation to orchestration, two contrasting effects can fiable overarching goal that would give all international
be expected. On the one hand, these SDGs could spur regimes and organizations a shared purpose to which
‘clustering’ of the agreements within their own issue their more specific activities must contribute.53
areas.46 For example, Goal 15 may strengthen the work
of the Biodiversity Liaison Group by serving as its col- The SDG framework does not include an overarching
lective goal.47 In fact, the targets under Goal 15 reflect environmental goal. Probably the closest to such a goal
41
is the determination of the international community
The 2030 Agenda, n. 1 above, at paragraph 31. expressed in the preamble of the 2030 Agenda ‘to pro-
42
UNFCCC, Decision 1/CP.21, Adoption of the Paris Agreement (UN
Doc. FCCC/CP/2015/10/Add.1, 29 January 2016), at preamble.
43 48
R.O. Keohane and D.G. Victor, ‘The Regime Complex for Climate E.g., Convention on Biological Diversity (Rio de Janeiro, 5 June
Change’, 9:1 Perspectives on Politics (2011), 7; R. Moncel and H. van 1992; in force 29 December 1993) (‘CBD’); Convention on Wetlands
Asselt, ‘All Hands on Deck! Mobilizing Climate Change Action beyond of International Importance, especially as Waterfowl Habitat (Ramsar,
the UNFCCC’, 21:3 Review of European Community and International 2 February 1971; in force 21 December 1975); Convention on the
Environmental Law (2012), 163; A.J. Jordan et al., ‘Emergence of Conservation of Migratory Species of Wild Animals (Bonn, 23 June
Polycentric Climate Governance and its Future Prospects’, 5:11 Na- 1979; in force 1 November 1983); International Plant Protection Con-
ture Climate Change (2015), 977. vention (Rome, 6 December 1951; in force 3 April 1952); CITES, n. 19
44
United Nations Framework Convention on Climate Change (New above.
49
York, 9 May 1992; in force 21 March 1994) (‘UNFCCC’), Articles 7.2 United Nations Convention on the Law of the Sea (Montego Bay,
(1) and 8.2(e). The relevant international institutions would include the 10 December 1982; in force 16 November 1994) (‘UNCLOS’).
50
Montreal Protocol, the Convention on Long-Range Transboundary Air The 2030 Agenda, n. 1 above, target 14.c.
51
Pollution, the International Maritime Organization regulating air pol- See S. Bernstein, n. 29 above.
52
lution from marine vessels, and biodiversity-related conventions. See W. Steffen et al., ‘Planetary Boundaries: Guiding Human Develop-
generally T. Hale and C. Roger, ‘Orchestration and Transnational Cli- ment on a Changing Planet’, 347:6223 Science (2015), 1259855. See
mate Governance’, 9:1 Review of International Organizations (2014), also V. Galaz et al., ‘Polycentric Systems and Interacting Planetary
59. Boundaries – Emerging Governance of Climate Change–Ocean Acidi-
45
UNFCCC, n. 44 above, Article 2. fication–Marine Biodiversity’, 81 Ecological Economics (2012), 21; M.
46
On the concept of clustering, see S. Oberthu € r, ‘Clustering of Multi- Nilsson and  A. Persson, ‘Can Earth System Interactions Be Gov-
lateral Environmental Agreements: Potentials and Limitations’, 2:3 erned? Governance Functions for Linking Climate Change Mitigation
International Environmental Agreements: Politics, Law and Eco- with Land Use, Freshwater and Biodiversity Protection’, 81 Ecological
nomics (2002), 317; K. von Moltke, ‘On Clustering International Envir- Economics (2012), 10.
53
onmental Agreements’, in: G. Winter (ed.), Multilevel Governance of R.E. Kim and K. Bosselmann, ‘International Environmental Law in
Global Environmental Change: Perspectives from Science, Sociology the Anthropocene: Towards a Purposive System of Multilateral Envir-
and the Law (Cambridge University Press, 2006), 409. onmental Agreements’, 2:2 Transnational Environmental Law (2013),
47
See <https://www.cbd.int/blg>. 285.
ª 2016 John Wiley & Sons Ltd

18
RECIEL 25 (1) 2016 INTERNATIONAL LAW AND THE SDGs

tect the planet from degradation . . . so that it can sup-

port the needs of the present and future generations’.54 ACROSS THE THREE DIMENSIONS
This statement recognizes a healthy planetary environ- Unlike the MDGs, the SDGs are not merely about devel-
ment as a prerequisite for meeting the needs of people. opment. The SDGs are intended to promote sustainable
However, this is not intended as a statement of a goal, development in its three dimensions – economic, social
and hence lacks the necessary attributes – content and and environmental. The task of balancing the compet-
intensity – on what needs to be done and to what ing interests is not an easy one, and requires difficult
degree.55 For example, the needs of the present and choices on the part of States and relevant international
future generations are not defined, although this is the organizations. Take the example of the global priority of
question that has plagued the sustainable development feeding everyone (Goal 2). Under business as usual, this
debate since the publication of ‘Our Common Future’.56 policy imperative is likely to translate into a greater
Furthermore, the term degradation is not defined, demand for fertilizers, which in turn will increase pollu-
hence it remains unclear as to what extent or in what tant or nutrient run-off into terrestrial or marine
ways the environment should be protected or given pri- ecosystems (Goals 14 and 15). Measures identified in
ority over development. No qualifier such as ‘serious’, target 2.4, that is, to promote ‘sustainable food produc-
‘significant’ or ‘irreversible’ is used, but the scope would tion systems’ and ‘resilient agricultural practices’, may
certainly not include any degradation. address food security and the environment at the same
time.59 Importantly, however, such measures may not
The three distinct environmental SDGs operating in the necessarily be those that are most efficient in the eco-
absence of an overarching environmental goal may in nomic sense. The success of an orchestrator of the SDGs
effect reinforce the division of the global environment will be contingent upon the extent to which it can influ-
into three arbitrary categories, that is, the atmosphere, ence States and international organizations to act altru-
the land and the ocean. Such a division can be counter- istically and cooperatively towards the mutually
productive to achieving the individual environmental beneficial goal of sustainable development.
goals because Earth’s subsystems, including the climate
system, often cut across the atmosphere, the land and Each SDG has multiple orchestrators, which in turn
the ocean. However, a number of crosscutting targets need to be orchestrated. A key ‘orchestrator of orches-
create critical connections across the boundaries and trators’ for the SDGs is the High-Level Political Forum
help weave the three spheres together. For example, for Sustainable Development (HLPF) under the aus-
target 14.1 on land-based sources of marine pollution pices of the UN Economic and Social Council. It was
links Goals 14 and 15, and target 14.3 on ocean acidifi- established by the 2012 UN Conference on Sustainable
cation links Goals 13 and 14. These two targets would Development to replace the Commission on Sustainable
demand ‘hardening’ of the Global Programme of Action Development. The HLPF faces a number of challenges
for the Protection of the Marine Environment from to effectively orchestrate international institutions.60
Land-Based Activities57 into a treaty as well as an ade- Notably, the HLPF is not guided by a single goal, but
quate recognition of the role of oceans in the carbon multiple goals and targets that point in different direc-
cycle under the UNFCCC, respectively. It remains to be tions. The SDGs have indeed been criticized for failing
seen how effective the targets might be in enabling to incorporate a compelling narrative to describe how
appropriate institutional responses to system-wide the world would look when the goals are fully
interactions and their effects.58 achieved.61

59
The 2030 Agenda, n. 1 above, target 2.4. Three proposed indica-
54
The 2030 Agenda, n. 1 above, at preamble. tors for this target include ‘percentage of agricultural area under sus-
55
G.P. Latham and E.A. Locke, ‘Self-Regulation through Goal Set- tainable agricultural practices’, ‘percent of agricultural households
ting’, 50 Organizational Behavior and Human Decision Processes using irrigation systems compared to all agricultural households’ and
(1991), 212. ‘percent of agricultural households using eco-friendly fertilizers com-
56
Our Common Future, n. 10 above. pared to all agricultural households using fertilizers’. UN Department
57
Global Programme of Action for the Protection of the Marine Envir- of Economic and Social Affairs Statistics Division, ‘Open Consultation
onment from Land-Based Activities (UN Doc. UNEP(OCA)/LBA/IG.2/ on Green Indicators: Compilation of Inputs by the Observers of IAEG-
7, 5 December 1995). SDGs and Other Stakeholders (4 Nov–7 Nov 2015)’, found at: <http://
58
For example, the new Paris Agreement lacks the necessary fea- unstats.un.org/sdgs/files/open-consultation-iaeg-2/Open%20
tures that a new climate agreement should have included for the pur- Consultation%204-7%20Nov%202015_All%20Goals_V6.xlsx>.
60
pose of concurrently addressing ocean acidification (for a discussion See S. Bernstein, n. 29 above. See also K.W. Abbott and S. Bern-
on what these features are, see, e.g., R.E. Kim, ‘Is a New Multilateral stein, ‘The High-Level Political Forum on Sustainable Development:
Environmental Agreement on Ocean Acidification Necessary?’, 21:3 Orchestration by Default and Design’, 6:3 Global Policy (2015), 222;
Review of European Community and International Environmental Law S. Bernstein, ‘The Role and Place of the High-Level Political Forum in
(2012), 243). The Paris Agreement merely notes in the preamble ‘the Strengthening the Global Institutional Framework for Sustainable
importance of ensuring the integrity of all ecosystems, including Development’ (2013), found at: <https://sustainabledevelop-
oceans, and the protection of biodiversity, recognized by some cul- ment.un.org/content/documents/2331Bernstein%20study%20on%20
tures as Mother Earth’. Decision 1/CP.21, n. 42 above, Annex, at HLPF.pdf>.
61
preamble. See ICSU and ISSC, n. 6 above, at 10.
ª 2016 John Wiley & Sons Ltd

19
RAKHYUN E. KIM RECIEL 25 (1) 2016

The 2030 Agenda sets out ‘[o]ur vision’ in three para- among the SDGs and targets by treating them as instru-
graphs, but it simply reiterates key priority areas ments for achieving a common objective.
embedded in the individual SDGs.62 The Open Working
Group of the General Assembly on Sustainable Develop-
ment Goals that developed the SDGs considered
‘[p]overty eradication, changing unsustainable and pro-
SUSTAINABLE DEVELOPMENT AS
moting sustainable patterns of consumption and pro- A PRINCIPLE OF INTEGRATION
duction and protecting and managing the natural The concept of sustainable development has ancient
resource base of economic and social development’ as roots,68 but it has been popularized since the 1992 Rio
equally important ‘overarching objectives of and essen- Declaration on Environment and Development. The
tial requirements for sustainable development’.63 Diffi- 2002 ILA New Delhi Declaration of Principles of Inter-
cult political debates about ultimate foundations were national Law Relating to Sustainable Development
avoided by the Open Working Group.64 One commenta- notes that ‘sustainable development is now widely
tor explains that ‘the virtue of the designed ambiguity accepted as a global objective’,69 and that ‘the concept
and inclusiveness of the sustainable development con- has been amply recognized in various international and
cept in enabling political agreement on the SDGs . . . national legal instruments, including treaty law and
militated against the articulation of . . . an underlying jurisprudence at international and national levels’.70
normative vision’.65 The HLPF as an orchestrator faces For example, the Treaty on European Union, as
a daunting challenge to address critical trade-offs in the amended in 1997, includes a reference to ‘the principle
absence of a clearly agreed and defined, high-level refer- of sustainable development’ in its preamble.71 Accord-
ence point. ing to one analysis, references to sustainable develop-
ment can be found in over 300 conventions, 112 among
which are multilateral, and roughly 30 are aimed at uni-
INTERNATIONAL LAW FOR versal participation.72 Importantly, more than 200 ref-
erences are found in the operative part of the
INTEGRATING THE SUSTAINABLE conventions. Although the international legal status of
DEVELOPMENT GOALS AND sustainable development remains a subject of debate,
TARGETS the concept has already influenced the outcome of sev-
eral judicial decisions of various international courts
Striking a balance between the competing demands of and tribunals, and it is increasingly understood and
development and environmental protection has always emerging as a general principle of international law.
been at the crux of the sustainable development chal-
lenge. As equal priorities, however, the SDGs per se The first time the International Court of Justice (ICJ)
provide little guidance as to where the balance lies faced a dispute concerning the conflict between eco-
between, for example, food security and environmental nomic development and environmental protection was
integrity. When implementing the SDGs, it might in the Gabcıkovo-Nagymaros case.73 The ICJ invoked
become necessary to have recourse to what the MDGs sustainable development as an international legal con-
referred to as the ‘principles of sustainable develop- cept that refers to the ‘need to reconcile economic
ment’66 and, in particular, the principle of integration development with protection of the environment’.74 In
and interrelationship.67 This part explores the potential practice, the ICJ ‘applied and accepted the concept as
of sustainable development as an ‘adjudicatory norm’, having direct normative force, which could be indicative
which would help to build cooperative relationships of the status as a principle’.75 The Vice-President
Weeramantry made this point explicit in his Separate
62
The first paragraph is about poverty, hunger, health, peace, educa- Opinion and made a compelling case that sustainable
tion, water and sanitation, food and energy (Goals 1, 2, 3, 4, 6, 7 and
11). The second paragraph is about human rights and human dignity,
68
the rule of law, justice, equality and non-discrimination (Goals 5, 10 D. Mebratu, ‘Sustainability and Sustainable Development: Histori-
and 16). The third paragraph is about economic growth and the envir- cal and Conceptual Review’, 18:6 Environmental Impact Assessment
onment (Goals 8, 9, 12, 13, 14 and 15). Review (1998), 493; C.G. Weeramantry, Universalising International
63
Report of the Open Working Group of the General Assembly on Law (Martinus Nijhoff, 2004); U. Grober, Deep Roots – A Conceptual
Sustainable Development Goals (UN Doc. A/68/970, 12 August History of ‘Sustainable Development’ (Nachhaltigkeit) (Social Science
2014), at paragraph 3. The same language appears in the outcome Research Center Berlin, 2007).
69
document of the United Nations Conference on Sustainable Develop- See ILA New Delhi Declaration, n. 67 above.
70
ment. The Future We Want, n. 10 above. Ibid.
64 71
N. Kanie, S. Bernstein and P.M. Haas, ‘Introduction: Global Consolidated Version of the Treaty on European Union, [2012] OJ
Governance through Goal Setting’, in: N. Kanie and F. Biermann, n. 4 C326/13.
72
above. V. Barral, ‘Sustainable Development in International Law: Nature
65
See S. Bernstein, n. 29 above. and Operation of an Evolutive Legal Norm’, 23:2 European Journal of
66
MDG target 7A. See <http://www.un.org/millenniumgoals>. International Law (2012), 377.
67
ILA New Delhi Declaration of Principles of International Law Relat- 73
Gabcıkovo-Nagymaros, n. 33 above, at 78.
74
ing to Sustainable Development, 2 April 2002 (UN Doc. A/CONF.199/ Ibid., at 78.
75
8, 9 August 2002) (‘ILA New Delhi Declaration’). See C. Voigt, n. 36 above, at 174.
ª 2016 John Wiley & Sons Ltd

20
RECIEL 25 (1) 2016 INTERNATIONAL LAW AND THE SDGs

development is ‘more than a mere concept’ and that it is principle, whose relevance has been independent of the
‘a principle with normative value’.76 For him, the princi- specific treaty formulation.86 For example, it was
ple of sustainable development is ‘a part of modern applied in cases where the relations between the parties
international law by reason not only of its inescapable to a treaty did not deal with environmental issues.87
logical necessity, but also by reason of its wide and gen-
eral acceptance by the global community’.77 How does this principle of sustainable development
integrate the needs of development with the protection
In the Iron Rhine case, the Permanent Court of Arbitra- of the environment? Probably one of the most authori-
tion (PCA) recognized this duty to reconcile economic tative and detailed accounts on this question is con-
development with environmental protection as ‘a prin- tained in the above-mentioned Separate Opinion of
ciple of general international law’.78 The PCA noted, Judge Weeramantry in the Gabcıkovo-Nagymaros
with particular reference to Rio Principle 4, which inte- case. As a principle, sustainable development recog-
grates environmental protection into the development nizes both the right to development and the right to
process, that ‘[e]nvironmental law and the law on devel- environmental protection as equally established rights
opment stand not as alternatives but as mutually re- under international law. Because they are equal, the
inforcing, integral concepts’.79 In other words, ‘where ‘right [to development] does not exist in the absolute
development may cause significant harm to the envir- sense, but is relative always to its tolerance by the envir-
onment, there is a duty to prevent, or at least mitigate, onment’.88 In other words, development cannot be pur-
such harm’.80 sued to such a point as to result in significant or
irreversible damage to the environment within which it
In the Pulp Mills case, the ICJ reaffirmed that ‘the bal- is to occur. For sustainability, therefore, ‘development
ance between economic development and environmen- can only be prosecuted in harmony with the reasonable
tal protection . . . is the essence of sustainable demands of environmental protection’.89
development’.81 In the specific context of the case in
question, the ICJ recognized ‘the need to strike a bal- In the Anthropocene,90 that reasonable demand is
ance between the use of the waters and the protection respect for planetary boundaries.91 In essence, plane-
of the river consistent with the objective of sustainable tary boundaries define preconditions for human devel-
development’.82 The ICJ did not make an explicit opment: they estimate a ‘safe operating space for nine
acknowledgement of sustainable development as a gen- planetary systems’ that are fundamental to human
eral principle. However, Judge Cancßado Trindade existence.92 The exact positions of these boundaries are
emphasized in his Separate Opinion that sustainable uncertain, dynamic and relative to each other as they
development has turned out to be ‘a general principle of interact in complex ways. Few scientists would contest,
International Environmental Law’.83 however, the existence of such thresholds in the func-
tioning of the Earth system. Sustainable development
Regardless of the exact legal status, it is reasonable to as envisioned in the 2030 Agenda can only be achieved
conclude that the concept of sustainable development within the safe operating space defined by planetary
has ‘practical legal consequences’.84 The concept has boundaries.93
been invoked by international courts and tribunals to
modify the application of other norms.85 It is a de facto
86
See C. Voigt, n. 36 above.
76
Gabcıkovo-Nagymaros, n. 33 above, at 85. 87
See, e.g., Iron Rhine Arbitration, n. 78 above.
77
Ibid., at 95. 88
Gabcıkovo-Nagymaros, n. 33 above, at 92.
78 89
Permanent Court of Arbitration 24 May 2005, Arbitration Regarding Ibid.
90
the Iron Rhine (‘Ijzeren Rijn’) Railway between the Kingdom of Bel- On the concept of the Anthropocene, see generally W. Steffen, P.J.
gium and the Kingdom of the Netherlands, Award (‘Iron Rhine Arbitra- Crutzen and J.R. McNeill, ‘The Anthropocene: Are Humans Now
tion’), at 67. Overwhelming the Great Forces of Nature?’, 36:8 AMBIO (2007), 614;
79
Ibid. W. Steffen et al., ‘The Anthropocene: Conceptual and Historical
80
Ibid. Perspectives’, 369 Philosophical Transactions of the Royal Society A:
81
ICJ 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Mathematical, Physical and Engineering Sciences (2011), 842.
91
Uruguay), [2010] ICJ Rep. 14, at 75. Compelling scientific evidence now indicates that many Earth’s
82
Ibid., at 64. subsystems (e.g., the climate) react in a nonlinear way, and are par-
83
Ibid., at 177; see also C. Voigt, n. 36 above. ticularly sensitive around threshold levels of certain control variables
84
P. Sands and J. Peel, Principles of International Environmental Law such as the atmospheric carbon dioxide concentration. Transgressing
(Cambridge University Press, 2012), at 10, discussing this in relation these so-called planetary boundaries will likely translate into irre-
to the Shrimp/Turtle case. See WTO AB 6 November 1998, United versible and abrupt environmental change, leading to a state less con-
States – Import Prohibition of Certain Shrimp and Shrimp Products, ducive to human development. Therefore, for any kind of long-term
WT/DS58/AB/RM (‘Shrimp/Turtle’). See also P. Sands, ‘International human development, we must respect certain biophysical precondi-
Courts and the Application of the Concept of “Sustainable Develop- tions as ultimate limits to human conduct. See, e.g., J. Rockstro €m
ment”’, 3 Max Planck Yearbook of United Nations Law (1999), 389. et al., ‘A Safe Operating Space for Humanity’, 461:7263 Nature
85
V. Lowe, ‘Sustainable Development and Unsustainable Argu- (2009), 472; W. Steffen et al., n. 52 above.
ments’, in: A. Boyle and D. Freestone (eds.), International Law and 92
See J. Rockstro €m et al., n. 91 above, at 472.
93
Sustainable Development: Past Achievements and Future Challenges W. Steffen et al., ‘The Anthropocene: From Global Change to Plan-
(1999), 19, at 36–37. etary Stewardship’, 40:7 AMBIO (2011), 739.
ª 2016 John Wiley & Sons Ltd

21
RAKHYUN E. KIM RECIEL 25 (1) 2016

Sustainable development should not be mistaken for emissions by 2050’; an integrated target of ‘increase
conferring automatic priority to the pursuit of purely energy intensity by 2.4% per year [and] decrease carbon
environmental values. At the same time, sustainable intensity by increasing the share of renewable energy to
development does not mean, and cannot be achieved 30%’; and a social target to ‘ensure universal access to
by, giving equal weight to all rights and interests. As the affordable, reliable and modern energy services’.99
economy and society are nested within Earth’s ecosys-
tem, the protection of the environment is ‘a sine qua The SDGs call for both sustained and sustainable eco-
non for numerous human rights such as the right to nomic growth and employment in Goal 8, but avoid any
health and the right to life itself’.94 In that sense, the mention of planetary boundaries. Target 8.1 explicitly
legal obligation to develop sustainably within ecological demands at least 7% gross domestic product (GDP)
limits does not require a new ecocentric ethic, but is growth per annum (in the least developed countries).
compatible with the anthropocentric ethic on which the There is a close relationship between GDP growth and
‘people-centred’ set of SDGs and targets are premised.95 carbon dioxide (CO2) emissions: CO2 emissions is a
The deeper issues of equity and causation, which are function of carbon intensity (CO2 released per unit
not taken into account by the planetary boundary energy) times energy intensity (energy use per unit of
approach,96 could be addressed through the application GDP) times GDP.100 Goals 8 and 13 may therefore come
of distributive principles such as intragenerational into conflict. If a particular GDP trajectory with conse-
equity, polluter pays and common but differentiated quent energy use is to be maintained while restraining
responsibilities. CO2 emissions, a constrained trend in ‘carbon intensity
9 energy intensity’ must be achieved globally.101 The
decoupling of economic growth and climate change
through technological innovation, if successful, could
APPLICATIONS TO THE satisfy the competing interests.102 But if ‘carbon inten-
SUSTAINABLE DEVELOPMENT sity 9 energy intensity’ cannot be kept at a safe level
GOALS due to the state of technology, the objective of sustain-
able development would dictate that the duty to reduce
Can the concept of sustainable development as recog- CO2 emissions will be given overriding priority over the
nized in international law provide normative guidance right to economic development. Economic growth in
as to how the SDGs and targets should be integrated? terms of GDP shall only be pursued to the extent that
The usefulness of this concept as an ‘arbiter’ is exam- ‘dangerous anthropogenic interference with the climate
ined below in different normative conflict scenarios. system’ can be prevented.103

‘Prosperity’ versus ‘Planet’ While some SDG targets facilitate free trade,104 not all
The concept of sustainable development recognizes free trade measures are environmentally benign. Rec-
that, in order to meet the needs of the present and onciling the two competing interests can be complex
future generations, the planet must be protected from and challenging as it was the case in the Shrimp/Turtle
significant and irreversible environmental degradation, case.105 The North American Free Trade Agreement
such as dangerous climate change. Therefore, in princi- (NAFTA), for example, allows the specific trade obliga-
ple, prosperity should only be sought after to the extent tions set out in specified international environmental
that planetary boundaries can be respected. One pro- agreements to prevail to the extent of any inconsistency
posal put forward by scientists was to design ‘each goal with NAFTA.106 Although this provision is conditioned
[to] include an overall carbon intensity target so that by the need to choose the least-trade-restrictive means
implementing the goal did not undermine targets in the of complying with such obligations,107 the underlying
climate or other environmentally-related goals’.97 In a
more sophisticated proposal, a group of scholars pro- 99
Ibid., at Figure 2.
posed each goal to contain three types of hierarchically 100
J. Rogelj, D.L. McCollum and K. Riahi, ‘The UN’s “Sustainable
organized, biophysical, integrated and socioeconomic Energy for All” Initiative is Compatible with a Warming Limit of 2 °C’,
targets.98 For an SDG on ‘universal clean energy’, for 3:6 Nature Climate Change (2013), 545.
101
See D. Griggs et al., n. 7 above.
example, the following targets were proposed: a bio- 102
The 2030 Agenda, n. 1 above, target 8.4. See also J.D. Sachs,
physical target of ‘global emissions to peak 2015–2020 The Age of Sustainable Development (Columbia University Press,
and fall 3–5% per year to reach 50–80% below 2000 2015).
103
UNFCCC, n. 44 above, Article 2.
104
The 2030 Agenda, n. 1 above, targets 2.b, 8.a, 10.a, 17.10, 17.11
94
Gabcıkovo-Nagymaros, n. 33 above, at 91. and 17.12.
95 105
The 2030 Agenda, n. 1 above, at paragraph 2. Shrimp/Turtle, n. 84 above.
96 106
See W. Steffen et al., n. 52 above; W. Steffen and M. Stafford- North American Free Trade Agreement (17 December 1992; in
Smith, ‘Planetary Boundaries, Equity and Global Sustainability: Why force 1 January 1994), Article 104.1.
107
Wealthy Countries Could Benefit from More Equity’, 5:3–4 Current Ibid. See also A. Rueda, ‘Shrimp and Turtles: What about Environ-
Opinion in Environmental Sustainability (2013), 1. mental Embargoes under NAFTA?’, in: E. Brown Weiss, J.H. Jackson
97
See ICSU and ISSC, n. 6 above, at 10. and N. Bernasconi-Osterwalder (eds.), Reconciling Environment and
98
See D. Griggs et al., n. 7 above. Trade, 2nd edn (Martinus Nijhoff, 2008), 519.
ª 2016 John Wiley & Sons Ltd

22
RECIEL 25 (1) 2016 INTERNATIONAL LAW AND THE SDGs

idea is in line with the objective of sustainable develop- not exceed 4,000 km3 per year, water productivity will
ment. The emerging principle of mutual supportiveness need to improve by 9–29%, which is attainable with cur-
that demands synergistic implementation of inter- rent technologies.115 In the longer term, however, such
national agreements in the field of trade and the envi- a technological approach may not be sustainable. A
ronment should also be interpreted as to giving priority more fundamental socioeconomic reorganization might
to protecting certain environmental thresholds.108 become necessary to enable a fairer (re)distribution of
resources. There is enough accessible freshwater on the
‘People’ versus ‘Planet’ planet to meet the needs of the present world popula-
Increasing agricultural land use and productivity to tion, but the issue is the highly uneven distribution of
help end hunger (Goal 2) may lead to the overuse or water.116 Similarly, the use of phosphorus to intensify
pollution of freshwater (Goal 6). This is especially so food production is uneven. The management of phos-
when the progress towards Goal 2 is partly measured by phorus use by redistributing it from excess to deficit
the ‘[p]ercentage of agricultural households using irri- regions may address food security and environmental
gation systems compared to all agricultural house- sustainability at the same time.117
holds’.109 Irrigation is indeed helpful to increase
agricultural productivity, but irrigated agriculture ‘Planet’ versus ‘Planet’
accounts for 92% of the total withdrawals of ‘blue water’ Measures taken to protect one part of the environment
from rivers, lakes and groundwater,110 totalling some may have unintended consequences on other parts of
2,000 km3 per year consumptive use, which is half the the environment. For example, preventing the dumping
proposed planetary boundary for sustainable fresh- of radioactive wastes at sea under the London Conven-
water use.111 In order to feed everyone in the world on tion118 reduces pressure on the marine environment,
current practices, estimates show that the blue water but may increase the pressure on terrestrial ecosystems.
use will have to substantially increase to a dangerous This phenomenon has been captured under different
level.112 Thus, increases in global food demand imply a concepts such as environmental problem shifting,119
major water trade-off between irrigation requirements cross-media pollution,120 pollution transfer or transfor-
and freshwater needed to secure other ecosystem ser- mation,121 negative spillover122 and, in the context of
vices.113 climate change mitigation, carbon leakage.123 To the
extent that the transfer involves transboundary
The use of best available technologies could in theory
115
provide medium-term solutions for sustainable devel- D. Molden, Water for Food, Water for Life: A Comprehensive
Assessment of Water Management in Agriculture (Earthscan, 2007).
opment. Agricultural production is a function of water 116
O.R. Young et al., ‘Goal-setting in the Anthropocene: The Ultimate
productivity times water extracted.114 This means that, Challenge of Planetary Stewardship’, in: N. Kanie and F. Biermann, n.
if we accept the proposed freshwater planetary bound- 4 above.
ary, and that the amount of blue water extracted must 117
See D. Griggs et al., n. 7 above.
118
Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter (London, 13 November 1972; in force 30
108
An example is found in the preamble of the Stockholm Convention August 1975).
119
on Persistent Organic Pollutants (Stockholm, 22 May 2001; in force 17 R.E. Kim and H. van Asselt, ‘Dealing with Environmental Problem
May 2004). For general discussions on the concept of mutual support- Shifting in the Anthropocene: The Limits of International Law’, in: E.
iveness, see, e.g., M. Sanwal, ‘Trends in Global Environmental Gov- Morgera and K. Kulovesi (eds.), Research Handbook on International
ernance: The Emergence of a Mutual Supportiveness Approach to Law and Natural Resources (Edward Elgar, 2016, forthcoming). See
Achieve Sustainable Development’, 4:4 Global Environmental Politics also Y. Yang et al., ‘Replacing Gasoline with Corn Ethanol Results in
(2004), 16; R. Pavoni, ‘Mutual Supportiveness as a Principle of Inter- Significant Environmental Problem-shifting’, 46:7 Environmental
pretation and Law-making: A Watershed for the “WTO-and-Compet- Science and Technology (2012), 3671; J. van den Bergh et al., ‘What
ing-Regimes” Debate?’, 21:3 European Journal of International Law if Solar Energy Becomes Really Cheap? A Thought Experiment on
(2010), 649. Environmental Problem Shifting’, 14 Current Opinion in Environmental
109
See UN Department of Economic and Social Affairs Statistics Divi- Sustainability (2015), 170.
120
sion, n. 59 above. J. Lowe, D. Lewis and M. Atkins, Total Environmental Control: The
110
A.Y. Hoekstra and M.M. Mekonnen, ‘The Water Footprint of Economics of Cross-media Pollution Transfers (Pergamon Press,
Humanity’, 109:9 Proceedings of the National Academy of Sciences 1982); G.E. Metcalf, D.J. Dudek and C.E. Willis, ‘Cross-media Trans-
(2012), 3232. On the concept of blue water, see, e.g., M. Falkenmark, fers of Hazardous Wastes’, 13:2 Northeastern Journal of Agricultural
‘Meeting Water Requirements of an Expanding World Population’, 352 and Resource Economics (1984), 203; L.A. Teclaff and E. Teclaff,
Philosophical Transactions of the Royal Society B: Biological ‘International Control of Cross-media Pollution – An Ecosystem
Sciences (1997), 929. Approach’, 27:1 Natural Resources Journal (1987), 21; L. Fernandez
111
See W. Steffen et al., n. 52 above. and C.F. Dumas, ‘Cross-media Pollution and Fuels – Can We Avoid
112
M. Falkenmark, J. Rockstro €m and L. Karlberg, ‘Present and Future Future MTBEs?’, 31:3 Energy Economics (2009), 423.
121
Water Requirements for Feeding Humanity’, 1:1 Food Security L.A. Teclaff and E. Teclaff, ‘Transfers of Pollution and the Marine
(2009), 59. See also International Assessment of Agricultural Knowl- Environment Conventions’, 31:1 Natural Resources Journal (1991),
edge, Science, and Technology for Development, Agriculture at a 187.
122
Crossroads: The Global Report (Island Press, 2008). H.B. Truelove et al., ‘Positive and Negative Spillover of Pro-envir-
113
E.M. Bennett, G.D. Peterson and L.J. Gordon, ‘Understanding onmental Behavior: An Integrative Review and Theoretical Frame-
Relationships among Multiple Ecosystem Services’, 12:12 Ecology work’, 29 Global Environmental Change (2014), 127.
123
Letters (2009), 1394. M.H. Babiker, ‘Climate Change Policy, Market Structure, and Car-
114
See D. Griggs et al., n. 7 above. bon Leakage’, 65:2 Journal of International Economics (2005), 421.
ª 2016 John Wiley & Sons Ltd

23
RAKHYUN E. KIM RECIEL 25 (1) 2016

damage, the well-recognized customary international which the CBD should take precedence over other inter-
law principle of ‘no-harm’ can come into effect.124 But national agreements.132 However, Article 22.1 is of little
many placeless cross-sectoral harms have not been practical value because the implementation depends on
accounted for. the circumstances of a particular case and how ‘serious
damage or threat’ is interpreted by the parties.133
Certain geoengineering measures, such as ocean fertili-
zation and CO2 sequestration in sub-seabed geological At a more fundamental level, a key challenge is how to
formations designed to mitigate climate change (Goal address a normative conflict between environmental
13) or ocean acidification (Goal 14), may seriously harm issues of equal priority, such as climate change and bio-
marine ecosystems (Goal 14).125 While the Convention diversity loss.134 They are both legally recognized as
on Biological Diversity (CBD) issued a ‘moratorium’ on common concerns of humanity under the respective
ocean fertilization,126 the London Protocol127 and the treaties,135 and scientifically understood as highly inte-
Convention for the Protection of the Marine Environ- grated ‘core planetary boundaries through which the
ment of the North-east Atlantic128 have begun regulat- other boundaries operate’.136 Yet there are instances
ing certain marine geoengineering activities including where measures implemented in pursuit of the objec-
ocean fertilization and carbon capture and storage.129 tive of the UNFCCC pose a considerable risk to the
Although no-transfer clauses such as UNCLOS Article objectives of the CBD.137 Some trade-offs are inevitable
195 and the London Protocol Article 3.3 are applicable, due to the inherent complexity of the interlinkages.138
they are of limited effectiveness due to their ambigu- What needs to be clarified in this regard is whether
ity.130 The CBD Article 22.1, which, in addition to the some degree of environmental problem shifting should
conventional conflict clause, includes a ‘reverse conflict be allowed if the overall health and integrity of Earth’s
clause’ where it is declared that if ‘the exercise of [the] ecosystem can be improved. From the perspective of
rights and obligations [of a contracting party deriving sustainable development, the answer is probably yes.139
from an existing international agreement] would cause This would in turn call attention to the overall effective-
a serious damage or threat to biological diversity’, then ness of international environmental agreements, the
the provisions of the CBD may have an effect.131 This performance of which would be evaluated in relation to
enables the parties to determine the circumstances in an overall environmental goal or what some call a sus-
tainability grundnorm.140
124
Declaration of the United Nations Conference on the Human Envir-
132
onment (UN Doc. A/CONF.48/14/Rev. 1, 16 June 1972), Principle 21. Ibid. See also R. Wolfrum and N. Matz, ‘The Interplay of the United
See also D.B. Magraw, ‘Transboundary Harm: The International Law Nations Convention on the Law of the Sea and the Convention on Bio-
Commission’s Study of “International Liability”’, 80:2 American Journal logical Diversity’, 4 Max Planck Yearbook of United Nations Law
of International Law (1986), 305; X. Hanqin, Transboundary Damage (2000), 445.
133
in International Law (Cambridge University Press, 2003); R.M. Brat- See, e.g., M. Doelle, ‘Linking the Kyoto Protocol and Other Multi-
spies and R.A. Miller (eds.), Transboundary Harm in International Law lateral Environmental Agreements: From Fragmentation to Integra-
(Cambridge University Press, 2006). tion?’, 14 Journal of Environmental Law and Practice (2004), 75.
125 134
See, e.g., P. Williamson et al., ‘Ocean Fertilization for Geoengi- Secretariat of the CBD, Global Biodiversity Outlook 3 (Secretariat
neering: A Review of Effectiveness, Environmental Impacts and of the CBD, 2010), at 11.
135
Emerging Governance’, 90:6 Process Safety and Environmental Pro- CBD, n. 48 above, at preamble; UNFCCC, n. 44, at preamble.
136
tection (2012), 475; L. Cao and K. Caldeira, ‘Can Ocean Iron Fertili- See W. Steffen et al., n. 52 above, at 8.
137
zation Mitigate Ocean Acidification?’, 99:1 Climatic Change (2010), See, e.g., M. Totten, S.I. Pandya and T. Janson-Smith, ‘Biodiver-
303; K. Caldeira and P.B. Duffy, ‘The Role of the Southern Ocean in sity, Climate, and the Kyoto Protocol: Risks and Opportunities’, 1:5
Uptake and Storage of Anthropogenic Carbon Dioxide’, 287:5453 Frontiers in Ecology and the Environment (2003), 262.
138
Science (2000), 620. P.D. Hirsch et al., ‘Acknowledging Conservation Trade-offs and
126
Decision IX/16, Biodiversity and Climate Change (UN Doc. UNEP/ Embracing Complexity’, 25:2 Conservation Biology (2011), 259.
139
CBD/COP/DEC/IX/16, 9 October 2008), at Section C. A. Steiner, L.A. Kimball and J. Scanlon, ‘Global Governance for
127
1996 Protocol to the Convention on the Prevention of Marine Pol- the Environment and the Role of Multilateral Environmental Agree-
lution by Dumping of Wastes and Other Matter, 1972 (London, 7 ments in Conservation’, 37:2 Oryx (2003), 227; A. Jo hannsdottir, I.
November 1996; in force 24 March 2006). Cresswell and P. Bridgewater, ‘The Current Framework for Inter-
128
Convention for the Protection of the Marine Environment of the national Governance of Biodiversity: Is it Doing More Harm Than Good?’,
North-east Atlantic (Paris, 22 September 1992; in force 25 March 19:2 Review of European Community and International Environmental
1998). Law (2010), 139. See also R.E. Kim and K. Bosselmann, n. 53 above.
129 140
Resolution LP.1(1), On the Amendment to Include CO2 Sequestra- On the concept of grundnorm in the environmental law context,
tion in Sub-seabed Geological Formations in Annex 1 to the London see, e.g., D.E. Fisher, Legal Reasoning in Environmental Law: A
Protocol (IMO Doc. LC 28/15, 6 December 2006); Decision 2007/2, Study of Structure, Form and Language (Edward Elgar, 2013); K. Bos-
OSPAR Decision 2007/2 on the Storage of Carbon Dioxide Streams in selmann, ‘Grounding the Rule of Law’, in: H.C. Bugge and C. Voigt
Geological Formations (OSPAR 07/24/1-E, Annex 6 (Ref. §2.10c), (eds.), Rule of Law for Nature: Basic Issues and New Developments
25–29 June 2007); Resolution LP.4(8), On the Amendment to the Lon- in Environmental Law (Cambridge University Press, 2013), 75; K. Bos-
don Protocol to Regulate the Placement of Matter for Ocean Fertili- selmann, Earth Governance: Trusteeship of the Global Commons
zation and Other Marine Geoengineering Activities (IM Doc. LC 35/15, (Edward Elgar, 2015); R.E. Kim and K. Bosselmann, ‘Operationalizing
18 October 2013). Sustainable Development: Ecological Integrity as a Grundnorm of
130
See R.E. Kim and H. van Asselt, n. 119 above. International Law’, 24:2 Review of European, Comparative and Inter-
131
See, e.g., E. Morgera, ‘Faraway, So Close: A Legal Analysis of the national Environmental Law (2015), 194. See also A. Underdal and
Increasing Interactions between the Convention on Biological Diver- R.E. Kim, n. 37 above; R.E. Kim and K. Bosselmann, n. 53 above;
sity and Climate Change Law’, 2:1 Climate Law (2011), 85, at 88. O.R. Young et al., n. 116 above.
ª 2016 John Wiley & Sons Ltd

24
RECIEL 25 (1) 2016 INTERNATIONAL LAW AND THE SDGs

Once the meaning of sustainable development has been

SUSTAINABLE DEVELOPMENT revised and updated for the Anthropocene, the overall
BEYOND 2030 progress towards this overarching objective should be
measured and monitored.147 The dominant metric for
The sustainability grundnorm would encapsulate a measuring progress has so far been GDP. It has been
clearly defined and globally accepted vision for long- widely used in many other composite indicators as a
term sustainable development beyond 2030. At the measure of quality of life. For example, the Human
core of such a vision is the duty of States and non-State Development Index (HDI) is calculated based on GDP,
actors to ‘conserve, protect and restore the health and adult literacy and life expectancy.148 Some have pro-
integrity of the Earth’s ecosystem’.141 It demands abso- posed to revise the HDI by adding an environmental
lute respect for planetary ‘must-haves’ that are funda- dimension,149 but the resulting Human Sustainable
mental for the welfare of people,142 while allowing a Development Index remains insufficient in its represen-
degree of flexibility as to how exactly to balance the tation of environmental sustainability.150 Fundamen-
needs of the present and future generations. This tally, the persistent reliance on GDP is ill-advised. GDP
grundnorm is arguably emerging through the repeated is dangerously inadequate as it ‘measures mainly mar-
and consistent references in international environ- ket transactions [while] ignoring social costs, environ-
mental law.143 mental impacts and income inequality’.151 There are
alternatives that adjust economic measures to reflect
The HLPF as the key orchestrator of the SDGs should social and environmental factors, including the genuine
clarify an overarching goal in light of this grundnorm. progress indicator (GPI), according to which, global
One way to go about it is to initiate a global dialogue economic welfare has actually decreased since 1978.152
through which an updated definition of sustainable Some more experimental attempts have been made to
development would eventuate. The oft-quoted Brundt- build a composite measure based on both subjective
land version allows for various interpretations of what and objective indicators, such as the Happy Planet
sustainable development might mean, hence rendering Index, which multiplies experienced well-being by life
itself practically useless, especially in relation to inte- expectancy and divides the product by ecological foot-
grating the economic, social and environmental objec- print.153 These attempts constitute important building
tives.144 Scientists have proposed a number of blocks for a successor to GDP that better measures pro-
alternative definitions based on planetary boundaries gress towards an overarching goal for the SDGs or, as
science such as ‘development that does not degrade the some put it, ‘a prosperous, high quality of life that is
biosphere’145 and ‘development that meets the needs of equitably shared and sustainable’.154
the present while safeguarding Earth’s life-support sys-
tem, on which the welfare of current and future genera-
tions depends’.146
CONCLUSION
Integration and long-term vision are two core themes of
141
Rio Declaration, n. 10 above, Principle 7. What the integrity of the sustainable development. While the SDGs are pro-
Earth’s ecosystem will mean in the Anthropocene remains a subject of claimed to be integrated and indivisible, their targets
debate, but it can be understood as the combination of the biodiversity
and ecosystem processes that characterized the biosphere as a whole
were derived from existing intergovernmental commit-
during the Holocene. P. Bridgewater, R.E. Kim and K. Bosselmann, ments without a clear long-term vision that stretches
‘Ecological Integrity: A Relevant Concept for International Environ- beyond 2030. The lack of coherence and vision in the
mental Law in the Anthropocene?’, Yearbook of International Environ- SDG framework creates a significant implementation
mental Law (2016, forthcoming). The Holocene provides an
appropriate precautionary reference point because it is the only state
of the Earth system that is known to support contemporary society. 147
r, M. Kok and D. Almassy, ‘The Measurement of Progress
L. Pinte
See W. Steffen et al., n. 93 above. in Achieving the Sustainable Development Goals’, in: N. Kanie and
142
D. Griggs et al., ‘Sustainable Development Goals for People and F. Biermann, n. 4 above.
148
Planet’, 495:7441 Nature (2013), 305. United Nations Development Programme, Human Development
143
See, e.g., P. Bridgewater et al., n. 141 above. The latest addition Report 1990 (Oxford University Press, 1990).
149
includes the reference to ‘the integrity of all ecosystems’ in the pream- C. Togtokh, ‘Time to Stop Celebrating the Polluters’, 479:7373
ble of the Paris Agreement. Decision 1/CP.21, n. 42 above. Nature (2011), 269.
144 150
See, e.g., K. Bosselmann, ‘The Concept of Sustainable Develop- G. Bravo, ‘The Human Sustainable Development Index: New Cal-
ment’, in: K. Bosselmann and D. Grinlinton (eds.), Environmental Law culations and a First Critical Analysis’, 37 Ecological Indicators (2014),
for a Sustainable Society (New Zealand Centre for Environmental 145.
151
Law, 2002), 81. R. Costanza, ‘Time to Leave GDP Behind’, 505:7483 Nature
145
B. Muys, ‘Sustainable Development within Planetary Boundaries: (2014), 283, at 283. See also D. Philipsen, The Little Big Number: How
A Functional Revision of the Definition Based on the Thermodynamics GDP Came to Rule the World and What to Do about It (Princeton
of Complex Social–Ecological Systems’, 1:1 Challenges in Sustain- University Press, 2015).
152
ability (2013), 41, at 45. I. Kubiszewski et al., ‘Beyond GDP: Measuring and Achieving
146
See D. Griggs et al., n. 142 above, at 306. For a commentary on Global Genuine Progress’, 93 Ecological Economics (2013), 57.
this definition, see R.E. Kim and K. Bosselmann, n. 140 above, at 153
See <http://www.happyplanetindex.org>.
154
199–200. See R. Costanza et al., n. 40 above.
ª 2016 John Wiley & Sons Ltd

25
RAKHYUN E. KIM RECIEL 25 (1) 2016

challenge. The problems that the goals and targets visit and update the definition of sustainable develop-
address and the solutions that they outline need to be ment and explicitly adopt the revised as its overarching
evaluated in relation to an overarching goal. However, goal.
this goal has not been spelt out in the 2030 Agenda.155
What we exactly want the SDGs to collectively and ulti-
mately achieve is still an open question, and for that
Rakhyun E. Kim is a Research Fellow at the Griffith Law
reason, we do not know how to measure the overall pro-
School at Griffith University with prior appointments at
gress. the Australian National University and the United
Nations University. He is currently serving as Book
Yet, the SDGs do not operate in a normative vacuum. Review Editor of Transnational Environmental Law, a
They are grounded in international law, which recog- Research Fellow with the Earth System Governance Pro-
nizes the objective of sustainable development. In the ject, an Associate Fellow at the Centre for International
absence of an internal mechanism to address conflicts, Sustainable Development Law and a member of the
the effectiveness of the SDGs depends substantially on IUCN World Commission on Environmental Law. In
the extent to which international law is accepted as June 2016, he will take up the position of Assistant Pro-
their normative context. The concept of sustainable fessor of Global Environmental Governance at the Coper-
development as recognized in international law nicus Institute of Sustainable Development at Utrecht
requires further clarification by international judicial University.
bodies, but at its core, it means the protection of the glo-
This article was developed from a working paper written
bal environment as a precondition for human develop-
at the United Nations University Institute for the
ment. Development must not cause significant and Advanced Study of Sustainability (UNU-IAS). The author
irreversible harm to the integrity of Earth’s life-support thanks Harro van Asselt and Norichika Kanie for their
system. As a way of harnessing the nexus of constructive comments.
international law and the SDGs, the HLPF should re-

155
See ICSU and ISSC, n. 6 above.
ª 2016 John Wiley & Sons Ltd

26

View publication stats