The Rule of Law and the Sustainable Development Goals
For many reading this, the Sustainable Development Goals (SDGs) require little introduction. Coming into force in January 2016, they represent the new, post-2015 development agenda: a set of 17 goals with 169 targets and further indicators to be pursued by every UN member state until 2030. One of the most significant developments is Goal 16 (peace, justice and strong governance) and nestled under this goal, target 16.3, which emphasises the promotion of the rule of law at national and international levels. Taking this target as a starting point, this article will review the relationship between the rule of law and the effective implementation of the SDG agenda.
From the MDGs to the SDGs
The new development framework has sought to improve on the Millennium Development Goals (MDGs) in breadth, complexity and applicability. The broadly accepted criticism that the 8 MDGs were too narrow in focus has been addressed with a much wider and holistic set of 17 new goals. They also represent a much more inclusive framework. Although the MDGs in theory applied to all, the targets primarily focused on the developing world, to be financed by wealthier member states. In contrast, the SDGs represent a more universally applicable set of goals, created from the largest UN consultative programme to date, and a number of the stated objectives apply beyond a specific sector to form fundamental building blocks for the agenda as a whole.
The position of the Rule of Law within the SDGs
IDLOs’ Director-General, Irene Khan, has previously called SDG 16 one such ‘crosscutting goal‘. But following a series of OWG meetings in July 2014, the final wording of Goal 16 stated not the ‘rule of law’ but rather ‘access to justice’. A report published by the Bingham Centre for the Rule of Law has explored the reasoning and impact of this decision. On the one hand, Goal 16’s ‘access to justice for all’ is an essential element in establishing and maintaining the rule of the law by empowering the most vulnerable groups in society to exercise their rights. However the rule of law doctrine is significantly wider than access to justice alone, incorporating additional elements such as the transparency and accountability of the law, the right to a fair trial, upholding human rights and judicial independence. A key concern is whether the placement of a narrower focus on ‘access to justice’ within the overall phrasing of Goal 16 and conversely, the incorporation of the broader concept of the ‘rule of law’ within a specific target, will in fact serve to confuse rather than clarify the importance of the doctrine as a tool for implementing the wider SDG framework.
Challenges for SDG implementation
With this in mind, it is important to consider where the rule of law currently falls short of supporting the SDGs. In early 2016, UN Secretary-General Ban Ki-moon warned of ‘the age of mega crises‘. One of the greatest challenges is the unprecedented refugee and migrant crisis in Europe. Such crises have placed overwhelming pressure on the democratic and legal systems of the developed world. The solutions found to current questions concerning the legal rights of asylum seekers, equal access to justice and Europe’s humanitarian values lie at the centre of both the crisis and the SDGs. Secondly, weaknesses in national and international tax law continue to persist giving rise to crippling global levels of corruption, bribery, fraud and tax evasion. Global Financial Integrity’s annual 2015 report estimates US$1.1 trillion was lost in illicit financial flows from developing countries in 2013. Yet despite the enormity of this problem, target 16.4 only speaks broadly of curbing ‘illicit financial and arms flows’. Many commentators have further noted that Addis Ababa Action Agenda on financing for the SDGs has failed to offer new sources of funding or transformative measures for the international finance system, setting aside proposals for a new international tax body. The future development of international and national tax legislation will be crucial in determining the realisation of the SDG agenda.
Looking forward: The role of the legal community
Despite these significant legal challenges to the effective implementation of the SDGs, the global legal community holds a unique position in the delivery of the new agenda through enforcement of the rule of law. This community extends to lawyers involved in advocacy, law reform, drafting of new legislation, legal education and in providing legal assistance and representation. Goal 5 (gender equality), for example, will be facilitated through the abolition of all forms of gender-based discriminatory legislation and practices, and the implementation of effective legal systems enabling the rights of women and girls to be heard and enforced. Goal 12 (responsible consumption) and Goal 7 (affordable and clean energy) similarly require internationally agreed legal frameworks which further provide developing countries with the legal tools with which to implement them.
Therefore despite the somewhat secondary nature of inclusion of the ‘rule of law’ under target 16.3, and the challenges posed by current weaknesses in international and national law, the promotion of the rule of law at a global level is the essential thread underpinning the achievability of the 15 year programme. As we look forward, the upcoming launch of A4ID’s legal guide to the goals will represent a hugely significant step towards positively harnessing the power of the law towards the delivery of the new development agenda.