Rights-Based Approaches in International Ocean Governance

Guest blog post by Lucy Tomkins, University of Edinburgh. 

This post is part of a series of guest blog posts written by PhD researchers and SHRC’s LLM Human Rights Dissertation Placement Student who took part in our Human Rights Research Knowledge Exchange Showcase last year. 

Introduction 

Rights-based approaches (RBAs) involve grounding human rights standards and principles into non-human rights domains across policy, law, and practice.[1] Over the past decade, the link between human rights and ocean governance has been increasingly recognised, with human rights seen as essential to achieving equity and sustainability.[2] Although RBAs are used across international fields, their growing adoption can lead to a less precise understanding in emerging areas.[3]

Background to RBAs 

RBA terminology began in the late 1980s and early 1990s within the international development field.[4] The aim was to shift away from a needs-based model towards policies that actively safeguard rights, linking human rights to socio-economic development.[5] Generally, RBAs are understood as conceptual frameworks that are normatively grounded in international human rights standards and operationally aimed at promoting and protecting human rights.[6] The ‘Common Understanding’ for RBAs, as described by the United Nations Sustainable Development Group, is the anchoring of plans, policies, and processes in a system of rights and corresponding obligations, encompassing civil, political, economic, social, and cultural rights.[7] This approach is also closely linked to human rights principles (such as, universality, indivisibility, and participation) and promotes their integration into the development and implementation of governance across various sectors.[8] This integration of human rights within broader international law frameworks laid the foundations for the normative use of rights language across different fields, including ocean governance.

Ocean governance, much like sustainable development, requires balancing social, economic, and environmental issues closely linked to human rights. The ocean is home to a vast range of biodiversity, and for millions of people, it is central to livelihoods, food security, cultural identity, and access to a clean and healthy environment. However, the effects of environmental degradation are often felt most acutely by those who depend most on the ocean, and whose human rights are directly affected as a result. Given this interconnection, RBAs have been explored to support governance that recognises and fulfils rights. For example, the recent Kunming-Montreal Global Biodiversity Framework under the Convention on Biological Diversity recommends a human rights-based approach across its 2030 targets.[9] As a result, it has become increasingly relevant to consider what an RBA means for ocean governance in practice.

Challenges for Understanding RBAs in Ocean Governance

While the aforementioned ‘Common Understanding’ of RBAs clarifies its normative goals, it offers little guidance on how they are conceptualised for implementation.[10] Definitions from an international scope often focus on promoting human rights without specifying the mechanisms to achieve this. As RBA language has expanded into new areas of international law, interpretations have become increasingly diverse and sometimes ambiguous.[11] Across sectors, RBAs have been used to refer to everything from frameworks and slogans to guiding principles like participation, non-discrimination, accountability, and empowerment, to the introduction of human rights to a clean and healthy environment.[12] While recognising RBAs as a "broad umbrella concept" helps reflect the diversity of practice, it creates challenges for policymakers and practitioners tasked with operationalising RBAs in emerging fields.[13] As a result, it is necessary to look beyond the ‘Common Understanding’ and draw on different relevant RBA interpretations to better understand how they can be applied in ocean governance.

Conceptualising RBA Tools

Currently, there is no consistent understanding of RBAs for ocean governance, making it increasingly challenging to apply the approach in practice.[14] However, examining how RBAs are interpreted across relevant national and international contexts can provide insights for future application.

On a national level, for example, the Scottish Human Rights Commission has developed a set of principles for applying RBAs across Scotland's projects, plans, and organisations.[15] At the international level, several organisations and bodies have developed their interpretations of rights-based approaches. While none focus specifically on the ocean, guidance from the Office of the United Nations High Commissioner for Human Rights[16], the UN Environment Programme[17], and the International Union for the Conservation of Nature[18] provides relevant interpretations to the ocean governance context. Drawing from these different examples, several themes emerge around what RBAs look like in practice.

The first consistent theme across different interpretations, both national and international, is the ‘mainstreaming’ of human rights as a form of RBA practice. This involves governance processes anchored in human rights terminology and language to ensure that human rights principles and standards are considered.

Another theme is the relationship between duty-bearers and rights-holders, and the role of states in ensuring rights are respected and breaches of rights are held accountable. Throughout the different interpretations, the need to address systemic inequalities and enhance the role of justice systems in protecting rights-holders is consistent. This can be seen in the ‘greening’ of rights by different regional human rights courts, where environmental harm can violate certain human rights, like the right to life, health, and private and family life.[19]

The final common theme extends beyond legal remedies and emphasises the importance of RBAs in facilitating procedural access to information and participation in decision-making. It builds on existing requirements on procedural rights, such as those enshrined in the Aarhus Convention[20] and the Escazú Agreement[21], and ensures that ocean governance decision-making includes the participation of all people and communities, particularly those marginalised and whose rights are most impacted.

Conclusion

By examining the definitions and understandings of RBAs across both national and international contexts, a clearer picture can emerge of what RBAs mean for ocean governance. As recognition of the importance of human rights in ocean spaces grows, this clarity becomes increasingly necessary. Moving forward, it is essential to continue developing this understanding of RBAs and ensure that human rights integration can be achieved in practice to secure a more equitable and sustainable approach to governance.

Endnotes

[1] Hannah Miller and Robin Redhead, 'Beyond ‘rights-based approaches’? Employing a process and outcomes framework' (2019) 23 The International Journal of Human Rights 699; Morten Broberg and Hans-Otto Sano, 'Strengths and weaknesses in a human rights-based approach to international development – an analysis of a rights-based approach to development assistance based on practical experiences' (2018) 22 The International Journal of Human Rights 664, page 655; UN Sustainable Development Group, ‘Human rights based approach’

[2]  John Knox, UN Human Rights Council, Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: preliminary report, (2012) A/HRC/22/43 

[3]  Hannah Miller, ‘From “Rights-Based” to “Rights-Framed” Approaches: A Social Constructionist View of Human Rights Practice’, (2010) International Journal of Human Rights vol.14(6) 915 

[4] David Patterson, 'Human Rights-based Approaches and the Right to Health: A Systematic Literature Review' (2024) Journal of Human Rights Practice

[5] Ibid; Miller (n 3)

[6] UN Sustainable Development Group, ‘United Nations Sustainable Development Cooperation Framework’ (2019), pages 14-24

[7] UN Sustainable Development Group, ‘The Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among UN Agencies’ (2003)

[8] ibid

[9] Convention on Biological Diversity, Decision 15/4: Kunming-Montreal Global Biodiversity Framework (19 December 2022) CBD/COP/DEC/15/4.

[10] Hannah Miller, ‘Rejecting “rights-based approaches” to development: Alternative engagements with human rights’ (2017) Journal of Human Rights Vol.16(1) 61-78, pages 62-64 

[11] Ibid; A Russell, ‘International Organizations and Human Rights: Realizing, Resisting or Repackaging the Right to Water’ (2010) Journal of Human Rights Vol. 9(1), pages 1–23; see also: Andrea Cornwall and Celestine Nyamu‐Musembi, ‘Putting the ‘rights‐based approach’ to development into perspective’ (2004) Third World Quarterly Vol.25(8)

[12] Miller and Redhead (n 1);

[13] Ibid; Miller (n 3)

[14] ibid

[15] Scottish Human Rights Commission, ‘A Human Rights-Based Approach’

[16] OHCHR, A human-rights based approach to data: leaving no one behind in the 20230 agenda for sustainable development (OHCHR, 2018); OHCHR, ‘Report on a human rights-based approach to health workforce education’ (2019) A/74/174; OHCHR, Digital Border Governance: A human rights based approach, (OHCHR, 2023); OHCHR, United Nations Human Rights Management Plan 2018-2021 (OHCHR, 2018) 

[17] Penny Urquhart, UNEP Climate Change Adaption Unit, Adopting a Human-rights Based Approach to Ecosystem-based Adaption (UNEP, 2022); UNEP, Climate Change and Human Rights, (UNEP, 2015) 

[18] Thomas Greiber, Melinda Janki, Marcos Orellana, Annalisa Savaresi, Dinah Shelton, Conservation with Justice: A Rights-based approach (IUCN, 2009) IUCN Environmental Law and Policy Paper No. 71

[19] For example, see Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, no. 53600/20, judgment (Grand Chamber) of 9 April 2024

[20] UNECE, Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998) 2161 UNTS 447 

[21] UN, Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (entered into force 22 April 2021) UN Treaties Series.XXVII.18