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When Human Rights Clash at the European Court of Human RightsConflict or Harmony?$
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Stijn Smet and Eva Brems

Print publication date: 2017

Print ISBN-13: 9780198795957

Published to Oxford Scholarship Online: August 2017

DOI: 10.1093/oso/9780198795957.001.0001

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To Discriminate in Order to Fight Discrimination

To Discriminate in Order to Fight Discrimination

Paradox or Abuse?

Chapter:
(p.112) 6 To Discriminate in Order to Fight Discrimination
Source:
When Human Rights Clash at the European Court of Human Rights
Author(s):

Dolores Morondo Taramundi

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198795957.003.0007

This chapter analyses arguments regarding conflicts of rights in the field of antidiscrimination law, which is a troublesome and less studied area of the growing literature on conflicts of rights. Through discussion of Ladele and McFarlane v. The United Kingdom, a case before the European Court of Human Rights, the chapter examines how the construction of this kind of controversy in terms of ‘competing rights’ or ‘conflicts of rights’ seems to produce paradoxical results. Assessment of these apparent difficulties leads the discussion in two different directions. On the one hand, some troubles come to light regarding the use of the conflict of rights frame itself in the field of antidiscrimination law, particularly in relation to the main technique (‘balancing of rights’) to solve them. On the other hand, some serious consequences of the conflict of rights frame on the development of the antidiscrimination theory of the ECtHR are unearthed.

Keywords:   antidiscrimination law, conflicts of rights, freedom of religion, sexual orientation, conscientious objection, reasonable accommodation, balancing, European Court of Human Rights, ECtHR, Ladele v. The United Kingdom

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