Introduction: The Capability Approach and Human Rights

Abstract

In March 2017, the Whanganui River in Aotearoa New Zealand was the first river to officially receive the status of a legal person. This legal personhood is based on the ontological understanding of the river as an indivisible and living whole and as the spiritual ancestor of the Whanganui Iwi (a Māori tribe). In this paper, I analyse the Te Awa Tupua Act in which the Whanganui River is declared a legal person and suggest to supplement the document with a cross-cultural account of the Whanganui River's wellbeing and with two normative principles that can help to effectively protect the river. First, I distinguish between a pre-political, a legal, and an institutional level within the Te Awa Tupua Act. I then identify the normative issues at stake in conceptualising and protecting the river's wellbeing. Subsequently, I discuss how the capability approach would need to be modified in order to incorporate the Whanganui River's wellbeing in terms of functionings. In the final section, I suggest two duties that could supplement the normative framework of the Te Awa Tupua Act. The paper concludes with a policy recommendation.

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