Traps and tools: a contextual critique of the right to development in international law

Chronic poverty existing alongside surplus wealth engages issues of ‘rights’ and ‘development’; however, law’s capacity to respond to these issues appears gravely limited and under analysed. This paradoxical coexistence of poverty and wealth in society and ‘rights’ and ‘development’ in law tends to transverse national, regional and international realms, hence the proposition that something more is at stake than normative inadequacy, defective judicialisation or ‘non-sequitur’ rules application. On the basis of this premise, this thesis contributes to the literature in Nigeria and globally by making the case for a shift of analytical lenses from legal norms to structures, and from property to people. By focusing on structures, law’s presuppositions become objects of critical inquiry, thus facilitating interrogation of the apparent value neutrality of law in the seeming perennial struggles between power and powerlessness – ‘having’ and ‘being’. Drawing from the case study of Nigeria, an oil-rich country with high poverty indices, this thesis critically examines the underlying structures of ‘rights’ and ‘development’ in national and transnational constitutions. Five structural pitfalls relating to law’s contradictory existence as traps and tools, the orthodoxies of economic determinism and methodological fetishism are identified and critiqued. In delving into the dichotomies of orthodox/unorthodox, visible/invisible, norms/structures, rights/emancipation and regulation/deregulation, this thesis draws methodological insights from Sousa Santos’ (2007) ‘Epistemology of the South’ and Smith’s (1999) Decolonizing Methodologies. In conclusion, the thesis offers suggestions for transcending traps as conditions necessary for the success of any socio-legal, political and economic strategies for poverty eradication in Nigeria – and by extension many ‘Third World’ countries.