Queering Chinese Human Rights Law Through The Receptor Approach: Integrating Non-Dsicrimination and Equality Laws Into National Legislation

Abstract

This bachelor thesis wishes to further develop a recent theoretical approach to international human rights law by Professor Tom Zwart known as the receptor approach (to human rights), which as a result will contribute to the wider body of knowledge surrounding this approach. The receptor approach aims to take a more culturally sensitive viewpoint on the implementation of human rights where these human rights may be absent in certain states so that non-western states may not perceive the West to be imposing their standards onto them. This is especially true for most African and Asian states and may be the most effective way to implement these rights for states in the two regions. Here, the thesis will take a normative approach when looking at the main research question that the author will have answered by the end of this thesis – that is – how should the receptor approach to human rights be employed in China as a means to implement the right to equality and non-discrimination so that homosexual men are not discriminated against on the basis of their sexual orientation? Having no prior literature or research published in an academic journal that has attempted to tackle the above research question, this thesis will try to bridge the research gap present. To do so, the author will take the following structure: first, the ongoing debate between the universalists and relativists and their respective theories on international human rights will be discussed. Then Tom Zwart’s approach will be discussed and it will be argued that the receptor approach would transcend the universalist-relativist debate. The next section dives into the historical shifts in attitudes towards homosexuality. Here, ancient and early modern China will be considered as the starting point and then compared with modern China. Finally, the author will build on the fact that there exists a legal obligation not to discriminate against homosexual men through the use of HRC communications and jurisprudence of other regional courts, and that by confirming the existence of state obligation, the use of the receptor approach is also justified. Following this, five receptors will be identified and then the appropriate amendments will be discussed to bring about positive changes with regards to discrimination and equality laws. At the end of the thesis, the author will conclude by summarising the last subsection which will in effect answer the normative research question that has been stated above.