Human right as a system: the concept of non-discrimination put into perspective

Abstract

In this thesis I will try to establish a link between the test applied by the courts in relation to a discrimination claim and the idea of human rights as a system. It is my claim that it are the political assumptions about the nature of the system in which the principle of nondiscrimination is placed which will determine the outcome of the assessment made by the court. In order to establish this claim I will set out, what I consider to be, the two main characteristics of the human rights law: indeterminacy and problem-solution. Both characteristics stand in stark contrast to each other. I will show that while the court is asked to make a determinate decision in relation to a discrimination claim, the principle of nondiscrimination cannot provide a justification for the solution adopted by the court. In order to surpass this difficulty the courts will make reference to a purposive analysis, relying on the object and purpose of the system in which the concept of non-discrimination finds it place. However, also this approach will fail, since the indeterminacy of human rights involves the entire system of human rights. I coming to this conclusion it is not my aim to search for a solution to this problem. Instead it is my believe that there is no solution to be found to this problem at all. However, laying out the mechanism the court uses will enable us to take account of the political, subjective choices, also a human rights lawyer is confronted with. Despite the apparantly absolute nature of human rights.