Specifying and Justifying a Basic Capability Set: Should the International Human Rights Framework be given a more Direct Role?

Abstract

The paper considers the role that the international human rights framework should play in the extension and application of Sen's capability approach. It discusses how emerging international standards in the field of human rights, supported by international human rights law, provide a basis for the specification and justification of lists of central and basic capabilities, and associated lists of duties on governments, international organizations and other international obligation-holders (both at the individual level, and collectively—through international co-operation). The idea of combining the capability framework with a background or supplementary theory of international obligation in the field of human rights is examined in the light of broader theoretical debates about the extension and application of the capability approach. The notion of a “human rights-based capability list” is then introduced. Finally, the paper suggests some possible applications of “human rights-based capability lists” in human rights advocacy and international poverty analysis.

Notes

¹ The paper focuses on how the international human rights framework can assist in the development of comprehensive (or first-order) capability lists analogous to that set out by Nussbaum. The discussion of the minimum core relates to the minimum core of a capability list of the Nussbaum type. This approach is not intended to preclude the specification of shorter capability lists when a comprehensive (or first-order) list of the Nussbaum type is not required.

² For an attempt to apply the human rights-based approach as a basis for the development of an agreed capability list for the UK Equalities Review, see Vizard & Burchardt (2007) and Burchardt & Vizard (2007).

³ In an important interpretative clarification, Sen has emphasized that whilst many human rights can be viewed as capabilities, certain process freedoms cannot be adequately analysed in the capability framework. See Sen (2005) for further details.

⁴ However, there is some ambiguity regarding the primacy of capability in Sen's conceptual framework, and at times a more fundamental role for the idea of human rights is suggested (e.g. Sen, 1984, p. 310).

⁵ Human rights can have their own domain of influence and importance without being parasitic on—or even being wisely reinforced by—subsequent legislation” (Sen, 2000, p. 498).

⁶ An important interpretative issue here concerns Sen's position vis-à-vis the alleged indeterminacy of positive duties in the domain of imperfect obligation. O'Neill's argument (discussed in the main text) turns on the idea that the positive duties associated with imperfect obligations are relatively indeterminate and therefore unclaimable and unenforceable. Does Sen's treatment of imperfect obligation support this proposition? Certainly, Sen has acknowledged that his treatment of imperfect obligation leaves the issue of who in particular is responsible for fulfilling a human right, and how far they are obliged to go in fulfilling the human right, open (Sen, 2000, pp. 494–495). His position further suggests that rights can relate to goal-promotions rather than to the achievement of particular actions (giving rise to the general subclass of “goal-rights”) (Sen, 1982a, 1982b, p. 347, 1985b, 2002, p. 645) and can be associated with a requirement of “reasonable consideration”—allowing for “permitted limitations” when goal-fulfilments are not mutually compatible (Sen, 2004a, pp. 338–342). Nevertheless, I have argued elsewhere that Sen's analysis does not suggest that the degree of indeterminacy in the field of imperfect obligation is so great as to preclude the possibility of codification and enforcement. For example, Sen's treatment of imperfect obligation emphasizes: (1) the importance of “subordinate principles of judgement” (particularly in relation to the notion of the “reasonableness” of actions or courses of action performed) for evaluating the fulfilment (and non-fulfilment) of imperfect obligation; and (2) the development of a framework of ethical, social and legal norms for evaluating the fulfilment of imperfect obligations of this type (Sen, 2004a, pp. 338–342, 348–355). Arguably, this analysis provides a point of departure for linking the general positive obligations “of those in a position to help” to human rights-based claims of reasonable assistance and aid—with practical action that fails to satisfy a “reasonableness” threshold being characterized in terms of non-fulfilment and/or violations. See Vizard (2006b) for further discussion.

⁷ Sengupta's reports arise in the context of the adoption of the Declaration on the Right to Development by the UN General Assembly in 1986. They place particular emphasis on the need for international co-operation in multiparty situations where the complete achievement of basic and central capabilities cannot be guaranteed by national states acting alone.

⁸ For the legal, power-based and feminist critiques, see, for example, Gearty (2004), Chomsky & Herman (1979) and Nussbaum (2003, p. 37). References to the literature on whether democracy and civil and political rights are always appropriate in different developmental and institutional contexts are given in McKay & Vizard (2006, p. 44).

Additional information

Notes on contributors

Polly Vizard

The paper draws heavily on Vizard (2006a, chapter 7). The author is grateful for discussions on the ideas presented in the paper and on earlier drafts with Tanya Burchardt, Arjun Sengupta, David Crocker, Frances Stewart, Ian Gough, Sakiko Fakuda-Parr and participants at relevant seminars at the 2004 and 2006 Annual Conferences of the HDCA, the 2006 Annual Conference of The Norwegian Association for Development Research and the Workshop Multidimensional Poverty: How to Choose Dimensions? Oxford, June 2006. The usual disclaimers apply.