Rights, Politics and Refugees : The Critical Legal Studies critique of rights and the Swedish shift in asylum and refugee policy of 2015 and 2016

Sammanfattning: This thesis engages and scrutinizes critiques of rights developed in Critical Legal Studies scholarship and critical international law theory, specifically as formulated in the works of prominent and influential legal theorists Duncan Kennedy and Martti Koskenniemi, and draws on them to grapple with the changes that Swedish refugee and asylum policy went through during the fall/winter of 2015 and 2016. During this period, a series of drastic and far-reaching restrictions were enacted. Despite this, the Swedish government could still, albeit under immense criticism, claim a status for their policies as respecting human rights and adhering to the principles of international law. Against this background, the purpose of this study is to examine anew, using works of Kennedy and Koskenniemi, the relationship between the concept of human rights on the one hand and politics on the other, and how this relationship can be observed to have been (re)negotiated during the policy shift in Sweden. The thesis also raises the question of whether any general or uniform assessment of rights discourse is available in the works of the chosen theorists, and if so, of what this consists. The results show that the indeterminacy and contingency of rights frameworks, which is pointed to by both theorists, provides a suitable perspective from which to view the flexibility of the discourse, but this perspective is also seen as partially inadequate and in need of being supplemented with an account of what, or who, effects actual policy outcomes and thus determines the social meaning and contents of human rights. The theoretical tools developed by Koskenniemi help explain how the structural biases of the deciding institutions, the Swedish government and the EU, contribute to the re-definition of the content of refugee rights. Further, it is argued that both theorists have some difficulty in expounding in any clear and unambiguous way just what consequences their critiques might have for how rights discourses can and should be approached. An engagement with asylum and refugee rights from a critical legal theory perspective was thus shown as offering both problems and possibilities.