PROGRAMMATIC APPROACHES TO REALISING SOCIOECONOMIC RIGHTS: DEBATES, DEFINITIONS AND TRENDS

The now obsolete 'justiciable versus programmatic' debate in socio-economic rights discourse was important in establishing the salience of these rights, given the tendency on the part of state actors to falsely assert their exclusively programmatic nature to the detriment of properly grasping legal obligations that attached in the here and now. Now that the justiciability of socio-economic rights is firmly established, scholars acknowledge that the distinction between the justiciable and the programmatic is an artifact of explanation, not an aspect of legal reality. We readily accept that socio-economic rights are both justiciable and programmatic. Nevertheless, in the past, debate revolved largely around refuting an unhelpfully pejorative understanding of the programmatic, undermining systematic analysis and inhibiting practical discussion of the policy frameworks necessary to make them a reality. In the present, the now-discarded debate continues to echo--judicialisation and litigation-based strategies remain the perceived lodestar of socio-economic rights realisation, implicitly (and at times explicitly) marginalising programmatic approaches. This is to be regretted--defining, explaining and justifying these programmatic aspects serves to improve the practical operationalisation of these rights. It helps us understand the underlaps and overlaps between these aspects, why familiar touchstones of the justiciability debate (like the respect-protect-fulfil framework, maximum available resources and minimum core) seldom find purchase at the policy level and why human rights actors might consciously eschew litigation. A programmatic approach shifts focus from the undoubtedly important, but crucially limited, arena of courts to the policymaking process where state bureaucrats, donors and civil society become involved in campaigning, deliberating and deciding on how to realise socio-economic rights. Three areas--national human rights action plans, human rights-based approaches to development and civil society mobilisation--are explored as arenas where programmatic approaches consciously marginalise litigation-based strategies.