A heated debate has arisen about the capability approach which involves several theoretical and practical issues. This thesis provides a contribution to this debate as it aims at adopting foundational concepts of the capability approach to interpret the collective and individual right of indigenous peoples to self–determination. It is therefore important to briefly outline the main issues which are discussed among capability theorists and practitioners.
Part of the debate focuses on key characteristics of the capability framework which are either supported or criticized.69 The complexity, vagueness and incompleteness of the capability framework are among the main attributes which have been praised or alternatively criticized. While some scholars consider the complexity,70 vagueness,71 and incompleteness72 as major strengths of the capability
69 Criticisms can be found, among others, in: C R Beitz, ‘Amartya Sen’s Resources, Values and Development’ (1986) 2 Economics and Philosophy 52; Kaushik Basu, ‘Achievement, Capabilities, and the Concept of Well–Being’ (1987) 4 Social Choice and Welfare 69; Norman Daniels, ‘Equality of What: Welfare, Resources or Capabilities?’ (1990) 50 Philosophy of Phenomenological Research 273;
David Crocker, ‘Functioning and Capability: the Foundations of Sen’s and Nussbaum’s Development Ethic (1992) 20(4) Political Theory 584; Martha C Nussbaum, ‘Non–Relative Virtues: an Aristotelian Approach’ in Nussbaum, C M and Sen, K A (eds), The Quality of Life, above n 11; Martha Nussbaum, Women and Human Development, above n 12; Mozaffar Qizilbash, ‘Capabilities, Well–Being and Human Development: a Survey’ (1996) 33(2) Journal of Development Studies 143; M Qizilbash,
‘Ethical Development’ (1996) 24(7) World Development 1209; M Qizilbash, ‘The Concept of Well–
Being’ (1998) 14 Economics and Philosophy 51; Robert Sugden, ‘Welfare, Resources, and Capabilities: a Review of Inequality Re–examined by Amartya Sen’ (1993) 31 Journal of Economic Literature 1947; Frances Stewart, ‘Basic Needs, Capabilities, and Human Development’ in Avner Offer (ed), In Pursuit of the Quality of Life (Oxford: Oxford University Press, 1996).
70 Enrica Chiappero–Martinetti, ‘Complexity and Vagueness in the Capability Approach: Strengths or Weaknesses?’, Paper presented at the 3rd Conference on the Capability Approach, Pavia, 3 September 2003); Enrica Chiappero–Martinetti, ‘A New Approach to Evaluation of Well–being and Poverty by Fuzzy Set Theory, in (1994) 7/9 Giornale degli Economisti e Annali di Economia 367; Sara Lelli,
‘Factor Analysis vs. Fuzzy Sets Theory: Assessing the Influence of Different Techniques on Sen’s Functioning Approach’, Working Paper Series 121, Public Economics, Center for Economic Studies, Leuven, Belgium, 2001); D Clark and M Qizilbash, ‘Core Poverty and Extreme Vulnerability in South Africa’, Discussion Paper N. 2002, The Economics Research Centre, School of Economic and Social
approach and have elaborated alternatives to incorporate these features, others interpret those attributes as serious weaknesses which impinge upon the possibility to operationalise the capability approach.73
The operationalization of the capability approach remains one of the thorniest issues to be debated; operational concerns cover indeed a wide range of measurement issues and diverse empirical questions.74 In this regard, it is important to highlight that criticisms regarding the possibility to implement the capability approach at the operational level,75 need to take into account that the capability approach has never been proposed as fully operational or as an exact formula.76 On the other hand,
Studies, University of East Anglia, 2002); M Baliamoune–Lutz, ‘On the measurement of human well-being: fuzzy set theory and Sen’s capability approach’ (Research Paper n. 2004/16, WIDER, Helsinki, Finland, 2004); Enrica Chiappero-Martinetti, ‘A Multidimensional Assessment of Well-being Based on Sen’s Functioning Approach, (2000) 2 Rivista Internazionale di Scienze Sociali 207; F Bourguignon and S R Chakravarty, ‘The measurement of multidimensional poverty’ (2003) 1 Journal of Economic Inequality 25.
71 Mozaffar Qizilbash ‘Vagueness and the Measurement of poverty’ (Discussion Paper N. 2000-3, The Economics Research Centre, School of Economic and Social Studies, University of East Anglia, 2000) Mozaffar Qizilbash ‘Vague Language and Precise Measurement: the Case of Poverty’ (2003) 10(1) Journal of Economic Methodology 41.
72 Alkire, Valuing Freedoms, above n 17, 9–11; Sen clearly states that the capability approach is intentionally incomplete: see, Sen, Inequality Re–examined, above n 11, 49; Sen, ‘Economic Methodology: Heterogeneity and Relevance’ (1989) 56(2) Social Research 299; Sen, Development as Freedom, above n 4, 253–254.
73 See, eg, Robert Sugden, ‘Welfare, Resources, and Capabilities: a Review of Inequality Re–examined by Amartya Sen’ (1993) 31 Journal of Economic Literature 1947; T N Srinivasan, ‘Human Development: a New Paradigm or Reinvention of the Wheel?’ (1994) 84 American Economic Review 238; J Roemer, Theories of Distributive Justice (Cambridge: Harvard University Press, 1996).
74 See, eg, Andrea Brandolini and Giovanni D’Alessio, Measuring Well–being in the Functioning Space (Rome: Banca D’Italia, 1998); Ingrid Robeyns, ‘An Unworkable Idea or a Promising Alternative? Sen’s Capability Approach Re–examined’, Center for Economic Studies Discussion Paper 00.30, Katholleke Universiteit, Leuven, 2000; Ruhi Saith, ‘Capabilities: the Concept and its Operationalization’, Queen Elizabeth House Working Paper 66:32, 2001; Sabina Alkire, Valuing Freedom; Sen’s Capability Approach and Poverty Reduction (Oxford: Oxford University Press, 2002);
Sakiko Fukuda–Parr, ‘The Human Development Paradigm: Operationalizing Sen’s Ideas on Capabilities’ (2003) 9(2/3) Feminist Economics 301; W Kuklys and Ingrid Robeyns, ‘Sen’s Capability Approach to Welfare Economics’ (Cambridge Working Paper in Economics 0415, Cambridge University, Cambridge, 2004).
75 Sugden, Welfare, Resources, and Capabilities: a Review of Inequality Re–examined by Amartya Sen, above n 73.
76 Sen, Gender Inequality and Theories of Justice, above n 21, 268: Sen clearly states that the capability approach is far from being a complete theory of justice.
several empirical studies in line with the capability perspective have been realized so as to prove the possibility to implement the capability framework.77 Among those empirical works, it is imperative to mention the application of core concepts of the capability approach in the Human Development Reports for poverty analyses and development policies.78 The concept of human development and the articulation of human development indexes,79 provide a clear example of the distinctiveness of the capability approach when applied for empirical purposes.80
Theoretical issues include the question of whether or not there should be a list of fundamental capabilities. More specifically, questions have arisen as to which capabilities are to be considered relevant, who is entitled to determine them, and under which procedures and circumstances.81 The issue of the admissibility of a list
77 Jean Drèze and Amartya Sen, Hunger and Public Action (Oxford: Clarendon Press, 1989); Jean Drèze and Amartya Sen, India: Economic Development and Social Opportunity (Delhi: Oxford University Press, 1995); Jean Drèze and Amartya Sen, Indian Development: Selected Regional Perspectives (New York: Oxford University Press, 1997). See all previous literature cited in footnotes, among others.
78 United Nations Development Program, Human Development Report (New York: United Nations Development Program, 1990–2006).
79 S Anand and Amartya Sen, ‘Human Development Index: Methodology & Measurement’, Occasional Paper 12, Human Development Report Office (New York: UNDP, 1993); S Anand and Amartya Sen, ‘Sustainable Human Development: Concepts and Priorities’, Occasional Paper 8, Human Development Report Office (New York: UNDP, 1994); S Anand and Amartya Sen, ‘Gender Inequality in Human Development: Theories and Measurement’, Background Paper for the Human Development Report 1995, Human Development Report Office (New York: UNDP, 1995); S Anand and Amartya Sen, ‘Concepts of Human Development and Poverty: a Multidimensional perspective’, Background Paper for the Human Development Report 1997, Human Development Report Office (New York: UNDP, 1997); S Anand and Amartya Sen, ‘Human Development and Economic Sustainability’ (2000) 28(12) World Development 2029, among others.
80 Sakiko Fukuda–Parr and Shiva Kumar, Readings in Human Development (Delhi: Oxford University Press, 2003); Sakiko Fukuda–Parr, ‘The Human Development Paradigm: Operationalizing Sen’s Ideas on Capabilities’ (2003) 9(2/3) Feminist Economics 301.
81 See, Robeyns, The Capability Approach: a Theoretical Survey, above n 51, 105–107.
of relevant capabilities finds Amartya Sen and Martha Nussbaum82 in two diametrically opposite positions.
Sen’s position on this matter is clearly against any final and predetermined list of capabilities, since the selection of capabilities as well as the weighting of those capabilities relative to each other, are inescapably the result of value–judgment processes. The determination of relevant capabilities cannot be anything other than context–related, as the bundle of relevant capabilities will depend upon the purposes of the evaluative exercise at hand.83
In responding to criticisms for not having committed himself to a particular list of capabilities,84 Sen argues that the crucial issue is not the listing of core capabilities, but rather the sanctioning of a predetermined list of capabilities. It is maintained that the key role in the identification of the relevant capabilities is played by the democratic process. Public discussion85 and reasoning86 are the primary elements through which it is possible to articulate different lists of capabilities for different purposes.87 This argument has led different scholars88 to investigate the procedures and principles through which the selection of capabilities may come about,
82 For a discussion of Sen’s capability approach and Nussbaum’s version see, Crocker, A D
‘Functioning and Capabilities: The Foundations of Sen's and Nussbaum's Development Ethic, Part 2’
in Nussbaum, C M and Glover, J (eds), Women, Culture, and Development (Oxford: Clarendon Press, 1995).
83 Sen, Inequality Re–examined, above n 11, 42–46; Sen, Development as Freedom, above n 4, 76–85.
84 Martha C Nussbaum, ‘Capabilities as Fundamental Entitlements: Sen and Social Justice’ (2003) 9(2/3) Feminist Economics 33.
85 For a detailed account of the importance and role of public debate see, Amartya K Sen, The Argumentative Indian (London: Penguin Books, 2005); Sen, Development as Freedom, above n 4.
86 See, Sen, Rationality and Freedom, above n 27.
87 Amartya Sen, ‘Capabilities, Lists, and Public Reasons: Continuing the Conversation’ (2004) 10(3) Feminist Economics 77.
88 See, eg, Alkire, Valuing Freedoms: Sen’s Capability Approach and Poverty Reduction, above n 17;
Ingrid Robeyns, ‘Sen’s Capability Approach and Gender Inequality: Selecting Relevant Capabilities’
(2003) 9(2/3) Feminist Economics 61.
considering that it may be difficult to ensure the democratic participation of all parties involved.
Nussbaum, on the other hand, proposes a specific list of central human capabilities which provides ‘the underpinnings of basic political principles that can be embodied in constitutional guarantees’.89 The list identifies those basic human capabilities that are deemed to be of fundamental importance in any human life.
The list of ‘central human capabilities’ is deemed to play a significant role in a pluralistic society since it is conceived of as a set of goals – a subset of social goals – and as a system of side-constraints that urge to be secured no matter what else is pursued.90 While these central capabilities are considered instrumentally and intrinsically valuable, they do not constitute a complete theory of justice: they provide the basis for determining a minimum threshold level that social and political institutions are called to promote.91
This thesis suggests a ‘middle-way’ position between Sen’s context–related approach and Nussbaum’s perspective on central human capabilities of universal applicability. In the next chapter, it will be shown how the articulation of the
‘indigenous capability rights system’ may provide a sui generis ‘list’ which comprises the bundle of indigenous rights included in the UN Declaration on the Rights of Indigenous Peoples. It will be argued that the legal precepts emerging in the
89 Martha C Nussbaum, Women and Human Development, above n 12, 74; Martha C Nussbaum, Capabilities as Fundamental Entitlements: Sen and Social Justice, above n 15, 40. The list of ‘central human capabilities’ consists of the following ten categories: life; bodily health; bodily integrity;
senses, imagination and thought; emotions; practical reason; affiliation; other species; play; and control over one’s environment. The list is considered to include highly general capabilities and open to revision.
90 Martha C Nussbaum, ‘Capabilities and Human Rights’ (1997) 66 Fordham Law Review 273, 299–
300.
91 Nussbaum, Women and Human Development, above n 12, 75.
UN Declaration on the Rights of Indigenous Peoples indicate core values of ‘partially universal’ applicability. Those international standards, in fact, do apply globally to a specific segment of the world’s population, that is, indigenous peoples. However, this thesis argues that a context–related process of implementation is required to operationalise the all–encompassing normative system of indigenous rights proposed in this work. The methodological approach to development policies for indigenous peoples will be constructed on principles and criteria which require a context–related analysis of the situation and issues that the policy aims to address. Indigenous individual and collective choices and decision–making processes are among the fundamental elements that need to be taken into consideration and included in the whole policy process.
185 Chapter 5
The normative level. The indigenous capability rights–based normative system
This chapter will discuss the fundamental conceptual categories developed in Sen’s capability approach and applied to construct the indigenous capability rights–based normative framework. There are four main concepts:
a) the conceptualization of the ‘goal rights system’ and the construction of an ‘indigenous goal rights system’;
b) indigenous rights within the ‘indigenous goal rights system’: the significance of freedom in the integrated process of self–determination;
c) indigenous rights as capability rights: from the ‘indigenous goal rights system’ to the ‘ indigenous capability rights system’;
d) the role of institutions and the enjoyment of the right of self–
determination.
186