A capability perspective on indigenous autonomy

Abstract

This paper argues that the capability approach can add to the concept of autonomy (as defined in international law) as a means to provide larger freedoms to indigenous peoples. We show that autonomous regimes established within nation-states – by opening up a space for self-governance – provide a means to facilitate indigenous peoples’ pursuit of their own paths of development. However, such regimes frequently face, and their effectiveness can be reduced by, various problems such as tensions between individual and collective rights, the definition of the ideal scope of autonomies, and the lack of proper implementation. This is illustrated with case studies from Colombia, Mexico and Nicaragua. We argue that the capability approach, and in particular its focus on the freedom to choose a life path one has reason to value, can be used to address such problems confronting autonomous regimes.

1. Introduction

Indigenous peoples are commonly characterised by the (at least partial) maintenance of their ancestral ways of life with respect to their decision-making powers and institutions¹ and by the special importance ascribed to their lands (Williams, 1990). Indigenous peoples also identify themselves as being indigenous and usually live as minorities within nation-states.²

As minority groups, indigenous peoples’ survival and ways of life are threatened not only by majority-based decision-making processes in democracies, but also by the external exploitation of their often resource-rich lands.³ As such, it seems essential that for the cultural identity and further existence of indigenous peoples to continue, they must be empowered to decide the destiny of their own lands themselves and to set their own priorities in development (International Law Association [ILA], 2010, 2012).

Autonomy in the field of international law refers to a legal instrument aiming at protecting the self-rule of minorities and indigenous peoples (see e.g. Dinstein, 2011; Suksi, 2013). Gaining autonomy can thus be a valuable means for indigenous groups to meet the threats mentioned above, as it opens up a space for self-government and decentralised decision-making within nation-states (Alfredsson, 1998, p. 125). However, where indigenous groups have achieved the status of an autonomous regime significant problems can still arise, such as tensions between individual and group rights, the identification of the regime’s exact scope, and the gap between the legal framework and its implementation.

This paper examines what the capability approach can add to the development of autonomous regimes and how it can help shed light on the problems confronting them. The capability approach serves as an analytical tool on a theoretical as well as on a practical level. We show how it can be used to delineate the individual and the collective within a specific autonomous regime. We also demonstrate how the capability approach may serve to define the scope of autonomies (the scope problem). Finally, we use the approach as an instrument to help assess the effective implementation of an autonomous regime (the problem of paper guarantees).

In order to do this, we outline what autonomy is and, more precisely, how it can help to solve some of the problems indigenous peoples often face within nation-states. We illustrate three possible problems by means of case studies from Colombia, Mexico and Nicaragua. We then analyse how the capability approach can be employed to further develop the discourse on autonomy as an instrument to enable indigenous peoples to freely decide their own paths of development. In particular, we show how the capability framework can provide new insights into existing problems faced by autonomous regimes.

The paper is structured as follows: in Section 2 the legal instrument of autonomy is introduced in theoretical terms and in relation to indigenous peoples. Section 3 draws on three case studies from Colombia, Mexico and Nicaragua in order to illustrate the three key problems often encountered by autonomous regimes. In Section 4 we introduce the capability approach and show why it is a promising framework in which to conceptualise the well-being of indigenous peoples in autonomous regimes. In Section 5, we show how the capability approach can shed new light on the problems discussed in Section 3, and Section 6 offers conclusions and avenues for future research.

2. Autonomy and indigenous peoples

2.1. The meaning of autonomy in international law

In international law, autonomy⁴ refers to a legal arrangement which authorises a group of persons or a territorial entity of a state to govern itself in certain matters through self-government (Dinstein, 2011; Heintze, 1997; Suksi, 2013).^5,6 According to Heintze (1997, p. 7), ‘[i]n principle, autonomy is regarded as the granting of internal self-government to a region or group of persons, thus recognising a partial independence from the influence of the national or central government’. Autonomy can thus be seen as a legal mechanism aiming to support the self-determination of a group existing within a state.⁷

Autonomy, however, is not a uniform concept. To begin with, autonomous regimes can differ with regard to the principle upon which they are based: the personality or the territoriality principle. Personal autonomies confer specific powers of governmental authority to members of a given ethnic group (Heintze, 1997, p. 22). For example, the Sami in Finland enjoy personal autonomy: as an autonomous body, the Sami Parliament has the right to decide upon educational and cultural matters of persons belonging to the Sami ethnic group. Personal autonomies do not have a territorial basis but are based on group membership. On the other hand, in territorial autonomies (such as the autonomous regions of the Atlantic Coast of Nicaragua) a certain region within a state is given a special status with specific powers of state authority granted to the territory (Heintze, 1997, p. 39). A pre-condition to using territorial autonomies as a means of group protection, however, is that the given indigenous peoples settle there in an ethnically homogenous community. In the following discussion, we pay particular attention to territorial autonomies as these are – in our opinion – the most useful to indigenous peoples because of their fixed territorial basis, which honours the importance they tend to ascribe to their lands.

Furthermore, autonomies differ as to the state’s delegation of powers. In any given autonomous arrangement the degree of delegated powers may vary across the hierarchy of governance, especially at the lower levels. In some autonomies, far-reaching powers, such as important legislative powers or certain fiscal authority, are delegated to regional bodies; in others, only a limited space for self-government is provided.⁸ For example, areas of self-governance may extend to cultural and educational matters, although they may also include land and resource questions or criminal matters. Depending on its scope and other factors – for instance, the method of fixing a given autonomy in a country’s legal order is of great importance (Suksi, 1998, p. 151)⁹ – the beneficial effects of an autonomous regime for an indigenous people will vary.¹⁰ In this paper, the degree of powers delegated in a given legal framework is also referred to as the ‘scope’ of an autonomy.

2.2. Autonomous regimes and indigenous peoples

Indigenous peoples are commonly characterised by their descent from pre-colonial populations, their particular traditions and cultures, the maintenance of some or all of their traditional institutions, and a specific relationship they have with their lands. In addition to these objective criteria, self-identification is an important subjective criterion.¹¹ Indigenous peoples may thus be distinguished from other minorities within a nation-state by the longstanding occupancy of their territories (often referred to as ‘since time immemorial’), by the preservation of at least some of their traditional social systems, institutions and traditions, and – generally – by the specific attachment they have to their land.

As indigenous peoples usually represent a minority in the state in which they live, they are subject to majority decision-making (in democracies at least). Hence, they run the risk of being overruled by the majority of the population and not being allowed to live in accordance with their own needs and interests. How does establishing an autonomy in such circumstances enable indigenous peoples to pursue their own path of development?

Autonomy is generally assumed as a promising model for group protection, as it opens up a space for self-rule by a minority group within a nation-state. In autonomies, minority groups can seek to preserve their historical, ethnic, and sociological features and cultural identities as they are not subject to majority decision-making processes in the areas covered by the autonomous regime. Tabajdi (n.d.) states that ‘[a]utonomy is for a minority like water for a fish’ (as quoted in Thornberry, 1998, p. 97). For Pernthaler (1975), autonomy is the only instrument available for the legal protection of peoples and minorities within a state, while other authors call autonomy the ‘queen’ of human rights protection mechanisms (Brems, 1995). This holds especially true for indigenous peoples who, as outlined above, need special regimes to be established in order to protect their interests and to pursue their own paths of development. As stated by Alfredsson (1998), in terms of both rights and needs, the case for indigenous autonomies is stronger than for most other minorities (Alfredsson, 1998, p. 125ff).¹² Furthermore, the component of group rights, which are of considerable importance to indigenous peoples,¹³ seems to be best protected by collective models of governance such as autonomy.

The key instrument protecting the rights of indigenous peoples, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which was adopted by the General Assembly in 2007, prominently refers to autonomy (UN General Assembly, 2007, Art. 4): ‘Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions’. Throughout the UNDRIP, this generally recognised right to autonomy is further concretised with respect to indigenous peoples’ distinct institutions (Art. 5, 20), cultural and religious traditions (Art. 11, 12), educational systems (Art. 14), development strategies (Art. 23), cultural heritage (Art. 31), and lands and territories (Art. 32).¹⁴

UNDRIP thus gives an important place to autonomy, in due recognition of its relevance for protecting indigenous peoples from oppression by the majority population and the difficulties they face within a wider nation-state. Nevertheless, the negotiations preceding the adoption of UNDRIP and afterwards were not without strong debate and criticism.¹⁵ In particular, the limited scope of autonomous regimes and the reduced importance ascribed to the collective rights of indigenous peoples in UNDRIP were criticised. It has been argued that the process of negotiation led to a watering-down of the powers conferred to indigenous peoples, and that the diminished importance of group rights in the final version of UNDRIP does not fully mirror the importance of group rights to indigenous peoples (Engels, 2011, p. 147). Thus, the situation is complex.

It seems that whether the legal tool of autonomy can indeed effect in practice what it generally promises in theory will, among other factors, depend on the scope of powers conferred to indigenous peoples. For autonomies to effectively safeguard indigenous interests and indigenous peoples’ freedom to pursue their own paths of development, it is crucial that they are sufficiently empowered to be independent of potential oppression by the majority in a nation-state. The powers conferred to autonomous regimes must also be fully implemented and realised in practice. What is more, structures of oppression can exist within indigenous autonomies themselves. In order to avoid such a possible continuation of oppression and of unjust power structures, striking a proper balance between individual and group rights in indigenous autonomies is crucial. In fact, as we will see in the case studies below, it is precisely these points which are problematic in practice: namely, the proper scope of autonomous regimes, the question of whether guarantees made on paper have been effectively implemented in practice, and the potential conflict between individual rights and group rights.

3. Problems with the concept of autonomy: the cases of Colombia, Mexico and Nicaragua

The problems generally associated with the establishment of autonomous regimes can arise at the theoretical as well as at the practical level. We illustrate these issues through three case studies.¹⁶ Methodologically speaking, these case studies aim to provide a direct link to practice and to enable a more specific, practice-oriented discussion of indigenous autonomy and the major problems associated with it. This does not mean that all indigenous peoples face these problems, but that autonomous regimes tend to be vulnerable to them.

Firstly, the problem of a possible encroachment upon individual rights by the collective is highlighted (individual vs. group rights) and exemplified with case studies in Colombia. Secondly, the problems related to the insufficient scope of autonomies (the scope problem) are discussed with reference to Mexico. Thirdly, the inadequate implementation of autonomous regimes (the problem of paper guarantees) is illustrated by taking the example of the Atlantic Coast of Nicaragua.

3.1. Individual vs. group rights: Colombia

Systems conferring group rights such as autonomies may pose a threat to and restrict the individual rights of group members. We refer to this as individual vs. group rights. At the theoretical level, Jones (1992, p. 186) states:

The worries start to arise when the rights claimed for the group demand more of its members than is consistent with their rights as individuals. Does a group have the right to deprive its members of basic liberties if their use of those liberties might erode the pattern of life characteristic of the group? Should a group have a right to require some of its members to sacrifice their lives to secure the aims of the group?

For example, some forms of corporal punishment – which can be commonplace among traditional indigenous societies – may violate the prohibition of inhumane or degrading treatment or punishment of individuals.¹⁷ These forms of corporal punishment might, however, be permitted if an indigenous group is given an autonomous space to punish minor offences according to traditional customary law. In these cases, the autonomous space created by the autonomy may entail a restriction of the individual rights of group members. Another example is where in autonomies indigenous lands are sometimes subjected to prohibitions against selling or mortgaging, with the aim of maintaining a territorial base for that indigenous people and in order to preserve their cultural identity. Indigenous individuals who want to mortgage or sell their lands might thus be limited in exercising their individual right to property.

The question of the extent to which restrictions of individual rights are legitimate in the name of cultural identity is subject to intense debate. The arguments generally fall within two opposing perspectives between universalists and cultural relativists. Cultural relativists tend to view the international human rights system’s emphasis on individual rights as a universally valid standard, as an imposition of western values not necessarily applicable in other cultural contexts (e.g. in Asia, Africa) which are traditionally more community/group-oriented.¹⁸ Universalists, on the other hand, believe that international human rights standards are universally applicable. Depending on whether one adopts a universalist or cultural relativist perspective, the extent to which it is acceptable to limit individual rights for the sake of community interests will be different: while the universalist might accept no or only very limited restrictions of individual rights in the interest of the group (in this case for the sake of cultural identity), the cultural relativist might be inclined to accept more far-reaching restrictions (see among others Donnelly, [n.d.]). For the purposes of this paper, we point out this important tension without entering further into the debate; in Section 5 we show how it is possible to move beyond the individual-group rights dichotomy, which makes it unnecessary to take position in the universalist-relativist debate outlined here.

Colombia provides an interesting example of the tension between individual and group rights. The Colombian Constitution recognises autonomously administered indigenous territories (Articles 328–330), as well as the right to autonomous jurisdiction by indigenous authorities according to indigenous traditional laws (Article 246). In 1997, the church Iglesia Pentecostal Unida de Colombia (IPUC) was conducting missionary activities on the territory of the indigenous Arhuacos (see also Kuppe, 2000). In response, the Arhuacan authorities closed a church building and prohibited the IPUC from public practice, arguing that the church’s evangelical beliefs contradicted and disturbed the traditions of the Arhuacos (i.e. undermined their cultural identity). Supporters of the IPUC then brought a Tutela claim (a Colombian judicial avenue to protect constitutionally guaranteed rights) before Colombian courts. They stated that the interdiction of the Arhuacan authorities violated their constitutionally guaranteed right to freedom of religion. The case reached the Colombian Constitutional Court (CCC, 1998), which held that the Arhuacan authorities had rightly prohibited the public practice of the IPUC and rejected the claim of the church’s adherents. One of the reasons for rejecting the claim was the Arhuacos’ right to their cultural identity and the fact that the indigenous authorities, by prohibiting only the public but not the private exercise of religion, had not encroached upon the core of the right to freedom of religion: the adherents of the IPUC could still practice their beliefs in private or outside Arhuacan territories.

This case is a good illustration of the tension between individual and group rights.¹⁹ Although the adherents of the IPUC were non-indigenous, it could be argued that the right to religious freedom of those Arhuacans who wished to listen to the IPUC missionaries was also encroached upon. However, might the judgement of the CCC been different if the adherents of the IPUC engaging in missionary activities were indigenous themselves, or if the indigenous authorities had also prohibited the private exercise of church members’ beliefs? Such issues are investigated in Section 5 of this paper.

3.2. The scope problem: Mexico

The practical worries faced by autonomous regimes relate to specific autonomous arrangements as a means of group protection in a given nation-state. In fact, rather than being an instrument of group protection, autonomous regimes may be used by state governments to calm or even suppress claims raised by indigenous peoples and civil society. As autonomous regimes can realise indigenous interests only to the extent of the rights which are conferred on them and if a sufficient scope for effective self-determination is granted, it is important to scrutinise the concrete features of the autonomy to ensure it is not used as a cover-up by governments to put aside concerns of indigenous peoples and civil society (Binder, 2004; Díaz-Polanco, 1997). In fact, ‘autonomy’ may be deliberately misused by governments who are unwilling to grant far-reaching rights to indigenous peoples but nevertheless wish to appear as ‘indigenous friendly’ (due to pressure asserted by civil society, for example). As such, regimes might adopt a legal framework which justifies the claim to be granted autonomy but in fact do not provide essential elements of group protection (e.g. indigenous land rights). We call this the scope problem.

The scope problem can be exemplified by taking the case of Mexico. In 2001, indigenous peoples in Mexico were granted autonomy on a territorial basis by means of a constitutional reform, which was initiated by President Fox. The model of autonomy chosen was that of communal autonomy. This means that Mexican indigenous communities have the right to elect their own authorities at the community level. These elected authorities are intended to represent the interests of the respective indigenous peoples vis-à-vis the Mexican government. However, the Mexican model of communal autonomy limits the rights of the indigenous communities to a list of limited and narrowly circumscribed rights and actually leaves the indigenous peoples with very little control over their own natural resources and no ownership rights to their lands (Mexico, 2001, Articles 2AI-VIII).

The Mexican model of autonomy thus seems deficient since the legally granted scope of autonomy is insufficient for effective indigenous self-governance. For instance, most Mexican indigenous peoples oppose the Plan Puebla Panama (PPP)²⁰ promoted by the government, which primarily concerns indigenous territories in Southern Mexico and is considered as seriously encroaching upon indigenous cultures as well as being harmful to indigenous interests in general (Bermúdez, 2008; Hofbauer, 2003; Style, 2001). The autonomy granted in 2001 does not seem to give the indigenous communities sufficient control over their resources and territories to enable them to effectively oppose the threats the PPP poses to indigenous cultures (Binder, 2004, p. 183). In fact, the Mexican Indigenous Congress (Congreso Nacional Indígena) rejected the Mexican model of autonomy as highly unsatisfactory (González, 2006).

The Mexican example demonstrates that not all laws and regulations which are called ‘autonomies’ are regarded as sufficient by the indigenous peoples concerned. Rather, the granting of an autonomous status by the state may be used as a policy of appeasement. In these cases regulations which grant merely minimal rights of self-governance are sold as ‘autonomies’ in order to calm civil society and public opinion. In Mexico, autonomy was granted only after increased support for indigenous claims was given by Mexican civil society.²¹ This is why it is important to closely scrutinise the legal regulations provided in autonomies to identify whether they are actually conducive to effective indigenous self-governance.

A sound legal framework is a good starting point; however, as we show in the following section with the example of Nicaragua, it may not be sufficient to ensure the freedoms of indigenous peoples if it is not properly implemented.

3.3. Paper guarantees: Nicaragua

We call the problem of a deficient realisation of autonomy paper guarantees as autonomy is only granted on paper (in laws or the Constitution). Different to the scope problem which refers to situations where the legal features of an autonomous arrangement are inappropriate or inadequate, paper guarantees occur when the legal arrangements of an autonomous regime are appropriate ‘on paper’ but their implementation is insufficient or completely lacking.

We explore this problem with respect to Nicaragua. The status of the Atlantic Coast of Nicaragua, the main settling area of three groups of Nicaraguan indigenous peoples, the Miskito, the Sumo and the Rama, is an example of a comprehensive autonomous regime from a legal perspective (Acosta, 2000; Binder, 2003). This Nicaraguan autonomy is extensively regulated by the Nicaraguan Constitution as well as by the Nicaraguan Autonomy Statute (Nicaragua, 1987; Art. 5, 89, 180, 181; Normas Juridicas de Nicaragua (1987)). The multi-ethnic autonomous regions of the Atlantic Coast (Región Autónoma del Atlántico Norte [RAAN], Región Autónoma del Atlántico Sur) have wide competences and their representative organs, the regional parliaments, have the power to influence in particular the economic and social development of the regions as well as decisions regarding resource exploitation.

The legal framework of the Nicaraguan autonomous regions complies with many of the criteria an adequate autonomous regulation should have. The regional parliaments are directly elected by the population of the Atlantic Coast, and via their representatives in national parliaments the regions can influence national policies concerning their territories. Competences of self-governance are granted to the regions mainly in cultural, economic and social matters, but they also have the power to shape national policies through drafting certain laws and co-administering their own territories. Self-governance of their territories and their undisturbed use thus seems guaranteed (on paper). Indigenous peoples are conferred land-rights on the land they traditionally occupy, and the regional parliaments have veto power regarding the exploitation of the natural resources of the Atlantic Coast (Art. 181 of the Nicaraguan Constitution). So, in theory, the Nicaraguan autonomy provides an adequate framework within which to realise the interests and rights of indigenous peoples.

In practice, however, the Nicaraguan regional parliaments have insufficiently represented the interests of the indigenous communities to the central government (Binder, 2003, p. 344). Encroachments upon indigenous territories by the central government have been furthered rather than prevented by the regional parliaments. For instance, resource exploitation in indigenous territories by a multinational company (Solcarsa) was supported by the regional parliament of the RAAN despite the fact that the indigenous Awas Tingni community had strongly opposed timber exploitation on its territory. The regional parliament did not represent the rights of the indigenous community, but rather sided with the central government and approved a concession, which could have been impeded by its veto. The resource exploitation entailed an intrusion into the territories of the Awas Tingni community and severely impacted indigenous culture and identity.²²

There were various reasons for the lack of representation of indigenous interests by the regional parliaments of the Atlantic Coast. These included financial and economic considerations which made it materially more attractive for the regional parliaments to favour resource exploitation by multinational companies over protecting the rights of indigenous communities. Furthermore, the political pressure exerted by the Nicaraguan government on the regional parliaments to decide in its favour was considerable (Binder, 2003, p. 344ff).

In this case, Nicaraguan autonomy is an example where an a priori adequate legal framework is guaranteed on paper, but was, for a long time, not implemented in such a way as to allow for effective self-government.²³ On the Atlantic Coast, proper implementation of the autonomous regime was lacking and the indigenous communities struggled to determine their own paths of development.

4. Autonomy and the capability approach

In this section we examine the complexities involved in the realisation of indigenous interests and rights by means of autonomy with recourse to the capability approach. We briefly introduce the capability approach and show how the difficulties indigenous peoples are exposed to can be conceptualised within the capability framework. We then translate the legal instrument of autonomy into the language of the capability approach. Finally, we show how the capability approach can help solve the problems facing autonomous regimes and how it can be used to monitor a fuller implementation of autonomies.

4.1. Overview of the capability approach

The capability approach has become an increasingly prominent framework for conceptualising and evaluating human wellbeing and development (Nussbaum, 2011; Sen, 1999), where human wellbeing is assessed in terms of the valuable ‘doings and beings’, also called functionings. All those functionings open to a person are called her capabilities, reflecting her freedom to pursue different life paths (Sen, 1992).²⁴ The ‘doings and beings’ relevant to a person’s wellbeing are those she has reason to value. Examples of such valuable functionings can range from ‘being well nourished’ or ‘being sheltered’ to ‘having access to a community’. A person’s wellbeing then depends on the freedom she enjoys to choose among valuable life paths, i.e. different combinations of ‘doings and beings’ she has reason to value.

We consider Sen’s framework of capabilities in greater detail (Sen, 1985).²⁵ The goods and resources available to a person form the starting point. Goods are taken to possess different characteristics, say a skirt has the characteristics of ‘a size 40’, ‘a piece of linen’ or ‘the colour blue’. A person can then convert the characteristics of the commodities at her command into functionings, such as converting a skirt into ‘being adequately clothed’ or ‘appearing in public without shame’. Whether certain functionings can be derived from a particular commodity will depend on physical, environmental and social conversion factors. Whether a person can indeed derive ‘being well clothed’ from a particular skirt, for instance, will depend, among other things, on whether the size fits her (physical conversion factor), if it sufficiently protects her from cold given the climate she lives (environmental conversion factor), and whether the social norms in the society she lives in allow women to wear skirts (social conversion factor). Thus, given a person’s resource endowment and her conversion factors she can derive a variety of functionings as she chooses. These possible ‘doings and beings’ within a person’s reach are her capabilities and reflect her freedom to choose among life paths she has reason to value.

This rather general framework has been specified in different ways in the literature. Some employ it for the assessment of human development within and across countries or use it in poverty measurement (Alkire, 2002; Fukuda-Parr, 2003). Others have further developed it into a theory of justice (Nussbaum, 2007). In the following section we focus on Sen’s account of the capability framework and see why it is especially suitable for conceptualising the wellbeing of indigenous peoples and for assessing the legal instrument of indigenous autonomy.

Before we do so, we first review an important debate within the capability literature especially relevant for the argument in this paper; this is the debate over how those functionings relevant for the evaluation of a person’s wellbeing should be identified.²⁶ The two main avenues suggested in the literature are a subjective and an objective one. In case of the latter, a list of valuable functionings is identified usually on the basis of some objective notion of human wellbeing, such as an Aristotelian idea of human flourishing (Nussbaum, 2001). One main point of criticism against this way of identifying functionings related to the assessment of a person’s wellbeing is the risk of an external imposition of values (inherent to the respective objective notion of wellbeing chosen). Along the subjective line, on the other hand, the functionings relevant to a person’s wellbeing are identified on the basis of that person’s own evaluation. The main criticism here is the risk of parochial values and adaptation phenomena which can distort the evaluation of a person’s wellbeing. One way suggested to circumvent these problems is to identify the valuable functionings in a process of deliberation and discussion among the people concerned.²⁷

In Section 5 we see how such a process of deliberation can be a promising way to move beyond a possible conflict between individual and group rights. Before that, we discuss whether the capability approach is suited to accurately capturing indigenous wellbeing.

4.2. The capability approach and indigenous peoples

A small but increasing number of contributions in the literature apply the capability approach to matters of human wellbeing in relation to indigenous peoples, and helpfully conceptualise possible approaches.²⁸ The capability framework, especially the importance it ascribes to human diversity and its focus on freedom, is well suited to do justice to the distinctive needs of indigenous peoples referred to above. More particularly, the capability perspective can increase our understanding of what distinguishes indigenous peoples from other minority groups, from a fourfold perspective. ²⁹

Firstly, indigenous peoples often have social and economic systems in which the organisation of production and means of exchange are generally not, or only partly, integrated into the market system. This may put them at a disadvantage since resources and goods which are not traded or purchased on markets are often neglected by standard monetary measures of wellbeing.³⁰ However, in the capability framework non-market goods are included in a person’s overall resource endowment, which she can then convert into capabilities she has reason to value. The capability framework thus allows for the inclusion of non-market goods and their influence on human wellbeing.³¹ In indigenous subsistence or exchange societies especially, this may make a crucial difference in the assessment of policies or societal structures.

Secondly, differences in the significance of goods – such as land, or the different ways in which goods can be used, say due to traditional knowledge – can be depicted via conversion factors within the capability framework. Indigenous peoples’ special attachment to their ancestral lands and territories can thus be seen as a specific functioning derived from their territories, say ‘to live in accordance with one’s ancestors’. Similarly, traditional knowledge, which is generally a crucial part of indigenous cultural heritage, can be conceptualised within the capability framework as a (social) conversion factor which allows one to derive a larger variety of capabilities from certain goods, such as the cure of diverse diseases by using traditional knowledge of herbs and plants. The capability framework makes it possible to account for the different usages and significance of goods to the wellbeing of indigenous communities.

Thirdly, the capability framework can account for differences in the value systems of indigenous peoples. For example, the value systems of indigenous peoples can lead to a valuation of capabilities different from that employed by the majority population of a nation-state. Through a process of deliberation and discussion among the indigenous people concerned, the functionings they consider important to their own wellbeing can be identified. The special importance indigenous peoples ascribe to their ancestral territories, for instance, can lead to additional capabilities they have reason to value, such as ‘living on the land of one’s ancestors’. The assessment of the wellbeing of indigenous peoples can then be performed on the basis of a set of valuable capabilities which differs from that of the majority population, thereby doing justice to indigenous value systems.³²

Fourthly, the capability framework’s focus on freedom to pursue different life paths one has reason to value, instead of on the achievement of a particular bundle of functionings, is well-suited to meeting a demand often voiced by indigenous communities who are minorities in nation-states. They demand the ability to choose their own life paths and ways of development which might be different from the majority population. It is important to note, however, that what matters is not the conservation or promotion of one particular life path per se but the freedom to choose whether they wish to pursue their ancestral ways of life, further develop them (possibly giving up certain traditions), or to adopt the majority population’s way of life. The process of deliberation and discussion among indigenous peoples in which the valued capabilities are identified can thus lead to a reinforcement and sustaining of traditional practices and structures, or to their questioning and a possible revision of the current way of life. What matters is not the conservation of a particular tradition for its own sake or the pursuit of some majority understanding of development or progress, but that members of indigenous communities have the freedom to decide for themselves which life path they prefer. The capability approach is well-placed to conceptualise this.

4.3. A capability perspective on indigenous autonomies

The features which make the capability approach particularly well-suited to capturing the needs and demands of indigenous peoples also reflect why the capability approach is a promising method for conceptualising and assessing the legal tool of indigenous autonomy. If we assume that in a democracy the objectives and paths of development are set by the majority – or, put differently, the valuation of capabilities is based on the value system of the majority population – the question arises: How can one do justice to the possibly different value systems of indigenous peoples and enable them to freely choose their own paths of development?

As discussed above this is precisely a primary goal of autonomous regimes.³³ Ideally, autonomy is a legal tool which enables indigenous peoples to discuss, prioritise and specify the capabilities they consider as valuable. The decentralisation of power in autonomies opens up a space for decision-making by a given group in accordance with the principle of subsidiarity. The principle of subsidiarity implies that a decision is taken at the level closest to those affected by the decision and therefore avoids an excessive centralisation of power.³⁴ So within the space created by an autonomous regime, indigenous peoples are able to decide upon their own capabilities. Indeed, it is important to ensure that members of an indigenous community have the capabilities necessary to benefit from establishing an autonomous regime, to participate in the decision-making processes and to put the outcomes fully into practice. The capability approach is particularly powerful for assessing this opportunity aspect.

Legal autonomy can serve as a tool to establish a legal space for indigenous peoples to identify the capabilities they consider as valuable and to pursue them, and ensure that their decisions (and priorities) correspond to the capabilities they consider to be essential. From the capability perspective, this freedom of choice made possible by the legal tool of autonomy is particularly important. When indigenous peoples have the freedom to choose their own paths of development, they are not fixed in a traditionalist view nor a policy of conservation. The capability framework seems particularly well-suited for conceptualising the legal instrument of indigenous autonomy and assessing the preconditions to effectively make use of the legal space created by autonomies. It puts freedom to choose one’s own life path onto centre-stage in assessing human wellbeing and development. Autonomy can be seen as a key legal instrument in opening up such a space and increase the freedom to pursue one’s own path of development. One might ask, though, whether there is an added-value to conceptualising autonomous regimes in the language of the capability approach. Can a capability perspective shed new light on existing problems with autonomies?

5. What the capability approach can add to the concept of autonomy

A capability perspective on autonomy can contribute to helping address the three problems related to autonomous regimes identified above.

5.1. A capability perspective on individual vs. group rights

Regarding the tension between individual and group rights, the use of the capability approach can be threefold. Firstly, it can help to assess the impact of self-government on the wellbeing of individual members of the indigenous group. In fact, for an autonomous regime to provide maximum freedom to its members, the different members should be able to decide the constituents of their wellbeing and have the right to participate in decisions regarding their future paths of development. However, such decisions might be taken, for instance, in a dictatorial way without including all members of the group, leading to an encroachment upon individual rights. Because of its focus on human wellbeing and freedom, the capability approach can be used to identify such tensions and help to establish the boundaries between them by examining the impact of self-government (collective decisions) on individual capabilities.

Secondly, the capability approach can help move us beyond the general and often very abstract individual-group rights dichotomy by revealing that there is no actual conflict in some cases. One way to do so is to scrutinise in greater detail why group rights, such as cultural identity, are actually valued by members of an indigenous group and which ‘doings and beings’ are constitutive for these group rights. This can highlight the fact that some apparent conflicts between individual and group rights dissolve once it is made clearer whether and how both contribute to the wellbeing of the individual members of the community.

Thirdly, if a conflict is indeed identified, the capability approach can help by reducing the conflict to one about the valuation of capabilities, which is well established in the capability literature. It has been argued that some capabilities can be understood as human rights (Sen, 2005). Similarly, if group rights are understood as rights people jointly enjoy due to their collective membership in a group, both the (possibly negative) impact of group rights on individual rights as well as a possible erosion of group rights due to the exercise of certain individual rights can be identified using the capability framework. Making such tensions explicit furthers an open discussion about the relative priority of the respective individual and group rights in each specific case, allowing for solutions which move beyond the usual individual-group rights dichotomy, and the idea that we must find a generalisable principle concerning the priority of individual or group rights which holds in all contexts. Put differently, in the capability framework it is not necessary to decide in fixed terms whether the group’s or the individual’s rights must always take priority, but it will depend on the value people ascribe to the ‘doings and beings’ protected by those individual and the group rights. Different priorities about individual and group rights can thus be reached in different settings, allowing indigenous people to discuss and decide this question themselves within their own contexts. Of course, there may still be disagreements among members of a community even after careful discussion and deliberation, but disagreement about the relative value of different capabilities is well known in the literature (Robeyns, 2005).

To illustrate, we return to the Colombian case study previously discussed: that is, the conflict between the group right of the Arhuacos by prohibiting external missionary activities on their territory and the individual rights of the IPUC missionaries to freedom of religion. Using the capability framework, we firstly analyse whether the missionary activities indeed threaten the cultural identity of the Arhuacos. In this case, cultural identity can be seen as functionings members of the Arhuacos have reason to value. Cultural identity is not considered valuable for its own sake but only if the members of Arhuacos (after a process of consultation, discussion and reflection) consider its practice to be valuable. It might be that such analysis reveals there is no conflict between cultural identity and the practicing of the IPUC’s religion, if it is practiced privately, for instance.

If a conflict does arise, however, where certain capabilities considered to be valuable by the Arhuacos are indeed undermined or replaced by new capabilities – such as practicing the religion of the IPUC missionaries – then the members of the Arhuacos can discuss and decide to which capability they would assign a higher value (all things considered). Do they themselves indeed value the functioning to practice and participate in IPUC’s activities? If so, does this practice undermine functionings they value even more? Such processes of discussion and deliberation can of course involve disagreement about the value of these different functionings, resulting in further disagreement among the members of the community about the relative importance of the functionings ‘practicing the religion of the IPUC missionaries’ and ‘living in accordance with the cultural identity of the Arhuacos’. However, such disagreements can occur about the relative importance of individual rights and the respective functionings as well.

The crucial difference this makes to the usual discussions about individual and group rights often found in the literature is threefold. Firstly, the capability approach can be employed to analyse whether there indeed exists a conflict between different rights and values. Secondly, traditional practices are not considered valuable for their own sake unless people actually value them: what is considered valuable ultimately depends on the judgement of the indigenous peoples. Thirdly, if there is a conflict and members truly have a reason to value the rights of both the individual and the groups, then the deliberation and discussion which serves to identify the value of the various functionings in the capability approach can also be used to identify the relative priority members of the community wish to give to individual rights versus group rights – the outcome might vary in accordance with the context.

5.2. A capability perspective on the scope problem

With respect to the scope problem, the focus on human wellbeing and on the capabilities most valuable to a given indigenous group can contribute to identifying the scope of an ideal autonomy. The capability approach may be used to identify the ideal scope of an autonomous regime, to specify the areas of self-government, and to frame autonomies in order to avoid problems such as those which occurred in Mexico. Firstly, the capabilities most valuable to an indigenous people – such as having control over their lands, accessing their religious sites, practicing traditional systems of decision-making – can be identified through a participatory process such as consultation. Secondly, a space for proper decision-making can be opened up to enable the community to select their own priorities and enhance their capabilities in the areas identified by the prior consultation, including identifying the resources required to actually realise the capabilities in question. This would lay the important groundwork for an autonomous regime to establish both a legal framework adequate enough to identify and protect their own capabilities, and a secure command over the resources needed to fulfil them.

In our case study from Mexico, the scope problem was that despite the established rights of indigenous communities to govern themselves, a lack of actual control and ownership over their lands and resources considerably undermined these rights. The distinction in the capability approach between means (i.e. resources) and ends (i.e. the freedom to choose between valuable functionings) is essential here. The focus on the latter – i.e. on the effective freedoms people enjoy – makes control over the required resources necessary. In the case of Mexico, this requires not only establishing the legal right of indigenous peoples to govern themselves, but also the identification of their own valuable functionings (such as ‘living on the land of one’s ancestors’) and the corresponding resources needed for these. In this sense the capability approach can contribute to defining the ideal scope of an autonomous regime on the basis of the resources needed to safeguard those particular ends unique to the respective indigenous community.

5.3. A capability perspective on the problem of paper guarantees

The capability approach can be used to monitor the practical implementation of an autonomous regime in order to ensure that the autonomy does not merely remain a paper guarantee. One way to do so is to assess the actual capabilities indigenous peoples enjoy as identified in the discussion process and to evaluate how far these differ from what is guaranteed in the legal framework. Insights gained from the empirical application of the capability approach in recent decades provide a major advantage in this respect. Empirical applications of the approach have been considerably further advanced through a variety of endeavours ranging from project evaluation to cross-country assessment of human development.³⁵ Burchardt and Vizard (2011), for instance, have proposed a capability framework to monitor human rights, which seems particularly promising for the assessment of the implementation of autonomous regimes.³⁶

How such a capability monitoring framework can contribute to overcoming the problem of paper guarantees can be illustrated in the case of Nicaragua. As discussed above, one problem encountered in the regional autonomies of the Atlantic coast of Nicaragua was that the regional parliaments inadequately represented the interests of indigenous peoples, which led to a multinational company engaging in resource exploitation on indigenous ancestral lands, despite the opposition of the affected Awas Tingni community. In this case, a capability monitoring framework could draw attention to the lack of implementation of the autonomous regime. An encroachment on indigenous interests by foreign resource exploitation could become visible in at least two ways. The decisions made by the regional parliaments could be compared with the stance taken by the affected indigenous communities and shortcomings could be identified accordingly. Cases where these decisions diverge in areas affecting the lives of the indigenous communities, such as resource exploitation, can then be taken as an indication of a lack of effective implementation of the autonomous regime. In addition, such lack of implementation might create problems for the actual realisation of capabilities: if, say, resource exploitation by multinational companies leads to environmental damage or other factors which threaten indigenous health or other fundamental capabilities, shortcomings in implementation will become visible. Once such a lack of implementation of an adequate legal framework is identified, a revision of the implementation mechanisms can take place. These can range from a better representation of indigenous peoples in the regional parliaments or the conferral of power on an indigenous decision-making organ (e.g. the concerned indigenous community), or even a revision of the regime’s legal framework.

The capability framework may contribute to overcoming the problem of paper guarantees by identifying gaps between guarantees on paper and their implementation, but it cannot necessarily identify the specific cause of the failure in implementation. In order to do so, it is critical to dig deeper to discover the underlying root causes of these gaps, such as possible power imbalances and cases of oppression. A potential limitation of the proposed approach may be the lack of relevant data. In particular, in countries without a regular census system or where the system does not adequately reflect the situation of minorities or indigenous peoples, a lack of data can constitute a major impediment to monitoring the implementation of autonomous regimes. However, this problem is not specific to the legal tool of autonomy or the capability-monitoring framework. It is a more general problem and political will and/or pressure to allocate sufficient resources to the collection of suitable data is needed in such cases.

The capability approach not only sheds new light on the boundary between individual and group rights. It can also be used to define the scope of an autonomous regime and to monitor its implementation. Accordingly, the capability approach is a promising tool for conceptualising the problems of autonomies, which were highlighted in Section 3 of this paper, and may also contribute to their solution. Moreover, applying the capability approach to the legal tool of indigenous autonomy tests whether the capability approach lives up in practice to what it promises in theory.

6. Conclusion

Opening up of a space for self-rule through the legal tool of autonomy can enable indigenous peoples to pursue their own paths of development and furthers the implementation of indigenous interests. However, we have shown how certain problems can affect autonomous regimes, such as tensions between individual and group rights, an insufficient scope of self-governance which only inadequately serves indigenous interests (scope problem), or the lack of implementation of a priori legally adequate autonomous regimes (paper guarantees). These were illustrated with reference to Colombia, Mexico and Nicaragua.

We have argued that the capability approach is a promising method for tackling these three problems associated with autonomous regimes. It may be used to draw attention to tensions between group and individual rights within an autonomous regime and resolve them on a case-by-case basis. It can contribute to defining the scope of an ideal autonomy by identifying the areas it should cover, and it can also be a valuable tool to help assess the practical implementation of a given autonomy. A capability framework thus allows an accounting of aspects of autonomous regimes often neglected by conventional legal analysis. It may help to considerably refine, develop and complement the ongoing debates on autonomy as a legal tool to protect the interests and rights of indigenous peoples and is a promising means to enabling them to pursue their own paths of development.

Our analysis is only a starting point for exploring the potential of the capability approach as a conceptualisation and monitoring tool for indigenous autonomy. The case studies illustrate three common problems faced by indigenous autonomous regimes, but other problems arise when indigenous peoples live across different nation-state borders, or do not live in homogenous territory, for example. Whether the capability approach can equally serve to illuminate these other problems is an open question, to be pursued in future research in theory and practice.

The capability framework is a promising tool to conceptualise indigenous autonomy because it puts at the centre the freedom of indigenous peoples to pursue the paths of development they value. Securing an autonomous space where indigenous peoples can develop and pursue their chosen paths of development is not only important for indigenous peoples themselves. It can also be of considerable value to the majority population to learn from different models and alternative paths of development. Especially in times of increasing doubts about conventional paths of development, considering alternative models of development and the spaces required to develop and pursue them seem of crucial importance for both humans and non-humans.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Christina Binder is a professor of international law at the University of Vienna and deputy director of the interdisciplinary Research Centre ‘Human Rights’. She was a visiting fellow at the Lauterpacht Center for International Law in Cambridge (2007–08), at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg (2008–10) and at McGill University in Montréal/Canada (August 2015). She is a member of the Executive Board of the European Society of International law, of the Young Academy of the Austrian Academy of Sciences and of the Committees ‘Implementation of the Rights of Indigenous Peoples’ as well as ‘Feminism and International Law’ of the International Law Association. Christina also acts as legal expert for OSCE/ODIHR and EU election observation and assessment missions: e.g. in Ecuador, Rwanda, Uzbekistan and Estonia. She is an electoral expert for the Congress of Local and Regional Authorities of the Council of Europe.

Constanze Binder is an assistant professor of philosophy at Erasmus University Rotterdam and co-director of EIPE (Erasmus Institute for Philosophy and Economics). Her research focuses on the area where political philosophy and economics meet, in particular on social-choice approaches to justice, moral limitations of markets, the analysis of freedom or the application of the capability approach to (economic) policy evaluation.

Acknowledgements

We are very grateful to Frances Stewart and Krushil Watene for their helpful comments and suggestions. Furthermore, we would like to thank Michelle Chew and two anonymous referees for their detailed and very useful comments.

Funding

Constanze Binder kindly acknowledges the financial support provided by the Netherlands Organisation of Scientific Research (NWO), as part of the project ‘Modelling Freedom: Formal Analysis and Normative Philosophy’.

Notes

1. We follow the UN’s understanding of the term ‘indigenous peoples’. See Section 2.2 in this paper for further discussion.

2. For a more detailed discussion on this point, including how indigenous peoples are particularly susceptible to external influence and pressure by majority populations, see Alfredsson (1998).

3. In non-democratic regimes, such as dictatorships and autocracies, the external domination of indigenous peoples (by the respective elites) can often be worse. For a more detailed discussion about the situation of indigenous peoples in different political regimes, see Ivison, Patton, and Sanders (2000).

4. Although the terms ‘autonomy’ and ‘self-government’ are sometimes used in the legal and political literature to refer to different types of legal regimes, we use them interchangeably in this paper.

5. See also the definition of autonomy by Creifelds (1990): ‘that parts of the State’s territory are authorised to govern themselves in certain matters by enacting laws and statutes but without constituting a State of their own’.

6. Kymlicka (1995, p. 27 et seq.) distinguishes between at least three forms of group-specific rights: self-government rights, polyethnic rights and special representation rights. He stresses, however, that self-government rights are mostly requested by the given minority. He holds that ‘[i]n most multination States, the component nations are inclined to demand some form of political autonomy or territorial jurisdiction, also as to ensure the full and free development of their cultures and the best interests of their people’.

7. The relationship between self-determination and autonomy as a legal mechanism is often not straightforward. In this paper, autonomy refers to one legal instrument or mechanism which has the objective to foster the self-determination of (indigenous) groups within a state.

8. As stated by Heintze (1997, p. 17): ‘In constitutional terms, the degree of autonomy can be measured according to the legislative power transferred by the State organs to the institutions of the autonomous regime’.

9. According to Suksi (1998, p. 151) it is even possible that an autonomy regulation is not given any particular fixed status in a country’s legal order.

10. The case from Mexico in Section 3 will illustrate the problems related to the insufficient scope of autonomous regimes.

11. See the definition given in the convention of the International Labour Organization (ILO, 1989, Art. 1): ‘Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country … at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions’. It is further stated in ILO (1989, Art. 1(2)) that ‘self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions for the Convention apply’.

12. In fact, indigenous peoples have a ‘better’ right since they have been settled in their territories ‘since time immemorial’. On the other hand, indigenous peoples are usually also more in need of stronger protection because of their specific vulnerability due to their special ties to their land.

13. According to Thornberry (1998, p. 119): ‘Among many indigenous peoples, the imprint of individualism may be much less than for non-indigenous societies’.

14. See, for instance, UNDRIP Art. 32(1): ‘Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources …’

15. For a detailed historical account and the main points of disagreement, see Engels (2011).

16. The subsequent discussion and findings can be extended to other regions where (the implementation of) autonomous regimes face similar problems. See for further reference and examples (ILA, 2010, 2012; Weller & Hohmann, in press).

17. The prohibition of torture is enshrined in ius cogens and customary law. Concerning treaty law, see for instance United Nations Treaty Series (UNTS, United Nations Treaty Series, 1966, p. 171, 1984, p. 85).

18. See, for example, the extensive reference to group rights in the 1981 Banjul Charter, the African Charter of Human and Peoples’ Rights, which also establishes duties of the individual (Organization of African Unity [OAU], 1981).

19. It could be argued that this case is actually a conflict between two sets of group rights. However, we follow the analysis of the CCC (see ibid.) in focusing on the freedom of religion of individual members of the Arhuacos, rather than the group right of IPUC members to practice their religion as a collective group on Arhuacos territory.

20. The PPP was initiated by Mexican President Vincente Fox in 2001. The goal of the PPP is to spur development by proposing a massive influx of public funds in order to develop transportation links, telecommunications systems, hydroelectric dams, and other infrastructural elements required to attract private investors to the region. For details, see Szeman (2005).

21. According to the Mexican daily newspaper La Jornada, in March 2001, 60% of Mexicans supported the causes of the Zapatistas (Ramírez, 2001).

22. The Awas Tingni case was decided in September 2001 in favour of the Awas Tingni community. The Inter-American Court found a violation of the American Convention on Human Rights with respect to the right to property (and the right to judicial protection) of the community (Inter-American Court of Human Rights [IACHR], 2001).

23. It should be mentioned that improvements were made in the aftermath of the Awas Tingni case in accordance with the Inter-American Court of Human Rights’ findings. The Court had required the delimitation and demarcation of the indigenous community’s territories, and Nicaragua has done this in the respective territories (IACHR, 2009).

24. For an overview, see Robeyns (2011).

25. Sen (1985) originally referred to the ‘doings and beings’ as functionings. All combinations of functionings open to a person are contained in what he calls ‘capability sets’ in his original framework. To remain consistent with other parts of the literature, we refer to all those functionings contained in a person’s capability set, i.e. all those potentially available to a person, as capabilities.

26. Another important debate concerns the question as to whether the capability framework is individualistic and fails to capture holistic or group-centered conceptions of human wellbeing. It has been shown, however, that the capability framework is based on methodological individualism and can well capture conceptions of human wellbeing which assign a fundamental role to a person’s membership in groups or a more holistic idea of how humans relate to nature (see for instance Alkire & Deneulin, 2009, pp. 34, 35; Robeyns, 2005). In Section 5 we discuss in greater detail how the capability approach allows us to circumvent an individualistic bias, often attributed to liberal theories, and to make a first step towards reconciling an apparent tension between individual and group rights. For other discussions in the capability literature, see Robeyns (2011).

27. Sen is one of the main advocates of a subjective approach; see for instance Sen (1999, 2009), while Nussbaum (2007) discusses and defends a lists approach. Both ascribe an important role to processes of discussion and deliberation in order to circumvent the problems associated with their respective approach to identifying the relevant functionings (or capabilities, following Nussbaum’s definition of the terms).

28. The relationship between indigenous rights and development policies is explored in Panzironi (2009). The capability framework is employed to analyse indigenous peoples’ sustainable human development in Gigler (2005). The idea of indigenous self-determination as a collective capability is explored in Murphy (2014). For contributions on collective capabilities, see Deneulin (2008), Stewart (2005), Ibrahim (2006) and Evans (2003).

29. For a more detailed discussion on cultural influences on the capability framework, see Binder (2009).

30. For a detailed study of the differences between evaluations based on the capability approach and cost-benefit analysis, see Alkire (2002).

31. There are other ways to account for non-market goods, such as people’s willingness to pay in cost-benefit analysis. For a discussion of the (limitations of the) valuation in cost-benefit analysis, see Sen (2000).

32. If one affirms that there exists a universal list of capabilities, as Nussbaum (2007) does, this statement can hold equally true: the relative importance regarding the valuation of the different capabilities may be different even if one does not assume that the capabilities as such are different.

33. Regarding how decisions are taken within an autonomous regime, we assume that all group members participate in the decision-making; however, this may not always be the case, as will be briefly discussed in Section 4.3.

34. See also Heintze (1997, p. 12).

35. This was despite initial scepticism about the possibility of operationalising the capability approach. For further reference, see Robeyns (2006), Fukuda-Parr (2003).

36. Burchardt and Vizard (2011) suggest monitoring human rights by starting with a basic list of actually realised functionings, recognised by international human rights standards, such as health status or physical security. This basic list of essential ‘doings and beings’ is then complemented with elements of treatment, such as immunity from arbitrary interference and an element of (individual) autonomy concerning control in relation to critical decisions which affect people’s lives.