In 2015, the UN General Assembly adopted the Sustainable Development Goals hereby establishing an international agenda setting the direction, norms and principles for international cooperation and state policy towards 2030. Given the centrality of the SDGs, it is relevant to take a closer look at their content and the discussions leading up to their adoption.
The SDGs are the result of an intergovernmental process in the UN Open Working Group (OWG) involving states, NGOs and civil society and at the High-Level Summit of the General Assembly, and as such, they reflect represent the outcome of negotiations among member states in the UN. Though the member states eventually did agree, agreement was far from dominating in the discussions of SDG 16 and, in particular, the position of the rule of law. Rather, as former UNDP leader, Helen Clark, remarked, the SDG 16 was “hotly contested during negotiations.” The co-chairs of the OWG deliberately scheduled negotiations of potentially contentious topics to be discussed at the late OWG sessions. The rule of law was envisaged as such a contentious topic and discussed in February 2014 at the 8th session out of thirteen sessions.
What were the different positions on the rule of law were articulated during the discussions? Which proposals were on the table? Where do the answers to these questions leave the status of the rule of law in the SDGs as a – if not the – central agenda to shape national and international development?
Dividing lines ran both between liberal democracies and autocratic states and between the Global North and the Global South. Liberal democracies - widely supported by NGOs - broadly favored a strong rule of law to underpin liberal rights and freedoms. Autocratic states such as Russia and the Non-Aligned Movement chaired by Iran argued that the rule of law was in conflict with Article 2, 7 of the UN Charter preventing the UN from interfering in domestic affairs of states. They agreed to the centrality of effective and capable governance; however, they rejected the notion that the UN had any competence in relation to accountability of the executive. Some opponents of the rule of law in the SDGs called for a common understanding before application of the principle of the rule of law while others emphasized the necessity of respecting historical, cultural and local varieties of perceptions of the rule of law. The Global South was concerned that adopting requirements of the rule of law at the national level marked a return of political conditionality with demands concerning human rights conditioning development cooperation. At the same time, the Global South called for the principle of the rule of law to be applied at the international level with the aim to increase equality, transparency and accountability of international organisations, not least within international financial institutions.
There were two central draft versions of the SDGs on the table during the negotiations. The first so-called Zero Draft Version of 2 June 2014 was written up by the co-chairs of the OWG following discussions at the 8th session in February 2014. In this first draft, the overall title of SDG 16 explicitly mentioned the rule of law: ”Proposed goal 16. Achieve peaceful and inclusive societies, rule of law, effective and capable institutions.” Furthermore, the targets on the rule of law included (among other elements) the development of effective, accountable, and transparent institutions as well as promotion of freedom of media, association, and speech.
The second central draft was the so-called Revised Zero Draft of 30 June 2014, which came up of discussions at the OWG 12th session of the Zero Draft. There are striking differences between this Revised Zero Draft and the first Zero Draft. The title was changed and now read: “Proposed goal 16. Achieve peaceful and inclusive societies, access to justice for all, and effective and capable institutions.” Rule of law had been omitted from the title of the goal and was replaced by access to justice. Instead, the rule of law in the Revised Zero Draft was reduced to a target. Furthermore, accountability in financial affairs was omitted from the targets entirely. Access to information and freedom of speech were merged into one target with less strong language and freedom of association was modified into peaceful assembly; “promote free and easy access to information, freedom of expression, association and peaceful assembly”. Freedom of the media and references to legal aid and due process in relation to access of justice were left out.
The Revised Zero Draft Version and comments to this document by representatives in the OWG were sent to and negotiated at the UN General Assembly (GA). The GA eventually, in September 2015, adopted the outcome document, “Transforming our world: the 2030 Agenda for Sustainable Development”. In this final document, the rule of law was still absent from the goal title: “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.” Yet, it remained present in a target: “Promote the rule of law at the national and international levels and ensure equal access to justice for all”. Meanwhile, accountable institutions were “promoted” to the goal title as well as maintained as a target and, this way, accountability was in fact emphasized compared to earlier drafts. Freedom of the media, freedom of speech and association included in the first Zero draft, already pruned in the Revised Zero Draft became even further curtailed with the target reading, “Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements”. Hence, it is likely that far from all states will allow national legislation to ensure free access to information and protection of fundamental freedoms.
It is often argued that the SDGs are ambitious. I do not intend to question this claim. However, the SDGs do reflect a compromise between all UN member states. In the case of SDG 16, this compromise involved reducing the principle of the rule of law from being an overall goal to a sub-target. The diverging perceptions and positions in the OWG negotiations suggest that the rule of law will remain a central and contentious topic in international cooperation worthy of attention.
20 December 2021
Kristine is an Associate Professor at the Department of History at the University of Southern Denmark. Her research areas include Scandinavian foreign policy, human rights and development aid in particular in the United Nations and the Council of Europe. Her current interest focus on the longer-term background as well as the more recent shaping of the SDGs. She takes an interest in how agendas of poverty reduction and climate has merged since the 1970s and in the decision-making process leading to the adoption of the SDGs, in particular how state and non-state actors promoted different versions of the SDGs in accordance with their particular preferences and how this competition and interplay between diverging visions and interests has shaped the SDG as the central international agenda towards 2030.