Queering International Law

Possibilities, Alliances, Complicities, Risks

Dianne Otto

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781351971133
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This ground-breaking collection reflects the growing momentum of interest in the international legal community in meshing the insights of queer legal theory with those critical theories that have a much longer genealogy – notably postcolonial and feminist analyses. Beyond the push in the human rights field to ensure respect for the rights of people with diverse sexual orientations and gender identities, queer legal theory provides a means to examine the structural assumptions and conceptual architecture that underpin the normative framework and operation of international law, highlighting bias and blind spots and offering fresh perspectives and practical innovations.

The contributors to the book use queer legal theory to critically analyse the basic tenets and operations of international law, with many surprising, thought-provoking and instructive results. The volume will be of interest to many scholars, students and researchers in international law, international relations, cultural studies, gender studies, queer studies and postcolonial studies.

Part I
Complicities: Sexuality, coloniality and governance

1 A tale of two atonements

Rahul Rao*

The claim that homosexuality is a Western ‘import’ is frequently used to discredit demands for the decriminalisation of queer sex in many non-Western societies. A common response to this argument has been the rejoinder that the criminalisation of same-sex sexualities was a Western colonial legal intervention – that is, it is institutionalised homophobia that is the Western import. This is especially true of territories once ruled by the British.¹ French colonies were largely spared an anti-sodomy law because most were annexed after it had been dropped from the Napoleonic Code in 1806. This code also influenced France’s European neighbours and their colonies.² One study notes that ‘the Commonwealth includes 42 (53.8%) of the 78 states which continue to criminalise same-sex sexual behaviour, and only 12 (10.6%) of 113 where it is legal’, before concluding that ‘the criminalisation of same-sex sexual behaviour by the British Empire, and associated colonial culture, have had a lasting negative impact’.³ Michael Kirby, former Justice of the High Court of Australia, speaks of sexual minorities being ‘kept in legal chains by the enduring penal code provisions of the British Empire’.⁴ In the lead-up to the 2011 Commonwealth Heads of Government Meeting (CHOGM) in Perth, he remarked that ‘it’s just a dear little legacy of the British Empire. It’s a very special British problem’.⁵ British lesbian, gay, bisexual and transgender (LGBT) activist Peter Tatchell went further by declaring that these provisions ‘are not authentic national laws that were freely legislated by the indigenous populations’.⁶

The reminder that anti-sodomy laws are an inheritance from British colonialism has shaded into an argument for Britain to play a leading role in their removal, particularly in the institutional arena of the Commonwealth. In anticipation of the 2011 CHOGM, Tatchell called on then British Prime Minister David Cameron to apologise for Britain’s imposition of the sodomy law on its colonies.⁷ Under pressure from activists, Cameron responded with an ill-advised comment suggesting that British aid would be linked to respect for LGBT rights in recipient countries.⁸ Confronted with the spectre of a novel form of conditionality camouflaged as a civilising mission, leaders in Tanzania,⁹ Uganda,¹⁰ Ghana¹¹ and elsewhere reacted with hostility. More significantly, a number of African queer activists publicly criticised Cameron’s statement, warning that the refusal of aid on sexual rights grounds would trigger the scapegoating of queers in these countries, reinforce perceptions of the ‘Westernness’ of homosexuality and further entrench power disparities between donor and recipient countries.¹² Two things became apparent in this moment: first, that British elites seemed unusually receptive to the suggestion that they ought to recognise anti-sodomy laws in the Commonwealth as an unfortunate legacy of British colonialism, with such recognition entailing a responsibility on their part to agitate against such laws; but second, that the ways in which they sought to assume this responsibility left them open, ironically, to charges of neo-colonialism.

In this chapter, I try to do three things. First, I offer an account of an emerging discourse of ‘atonement’ among British elites for the anti-sodomy laws in Commonwealth countries that are seen to be a legacy of British colonialism. Second, drawing on political theoretic, literary and psychoanalytic resources, I develop a critique of the forms in which this atonement is expressed, arguing that it is underpinned by a desire to avoid engaging with guilt. Third, I contrast this ‘imperious’ atonement with a more equivocal discourse of atonement expressed in relation to the question of slavery. In doing so, my aim is not so much to make a case for atonement for the treatment of sodomites or slaves under colonial rule – a task that is beyond the scope of this chapter – as to think through why atonement seems to be more contemplable for the sexual injustices of colonialism than for its racial crimes. In doing so, I hope to say something about the relative discursive power wielded by claims to sexual and racial justice respectively in contemporary British society.

Responsibility and atonement for anti-sodomy laws in the Commonwealth

The notion that Britain bears a historic responsibility for extant anti-sodomy laws in Commonwealth countries and that moral and political obligations follow from this recognition was articulated most explicitly in a debate on the ‘Treatment of Homosexual Men and Women in the Developing World’ in the House of Lords in October 2012. Observing the proceedings from the public gallery, Mark Gevisser suggested that the most remarkable thing about the debate might have been that it was not a debate at all: speakers from across the political spectrum seemed to share a consensus that the United Kingdom should protect and advance LGBT rights globally.¹³

Opening the debate, the Conservative peer Lord Lexden, official historian of the Conservative Party since 2009, sought to underscore the provenance of laws criminalising sexual minorities. In a strikingly romanticised view of pre-colonial history and a correspondingly damning indictment of colonialism (all the more remarkable for coming from a Tory historian), he noted that ‘[t]he love that had freely spoken its name and found expression in … native cultures became, in the definition of their new British-imported law, an unnatural offence’.¹⁴ Another Conservative peer, Lord Black of Brentwood, elaborated: ‘It is important to explain why the UK, with this House in the vanguard, should care … we caused this problem. That so many people around the globe still suffer from legal discrimination is one toxic legacy of empire. It is our duty to help sort that out’.¹⁵ He would encounter little disagreement from Lord Smith of Finsbury, formerly of the Labour Party and one of the first British MPs to come out as gay and HIV positive:

The continued existence of discrimination, violence and criminalisation in so many Commonwealth countries is particularly shaming. There is a bitter irony … in that most laws in these countries have been inherited from us. I believe that that gives us a special responsibility to do whatever we can to help to change things.¹⁶

The repeated references to ‘special responsibility’ struck Gevisser as a contemporary form of ‘“white man’s burden”: because Britain had brought homophobia to the developing world, it was Britain’s responsibility to take it away’. While admiring the noble intentions of the speakers, Gevisser wondered ‘whether those brave Peers had learned much from the colonial experience: they were still adopting the missionary position’.¹⁷

The discourse of British responsibility for anti-sodomy laws is also audible in civil society. The singer Elton John recently remarked in an interview to CNBC, ‘these are old laws from the British Commonwealth and they need to be changed … the Queen could do that with one wave of her hand’.¹⁸ While blithe assertions of this kind are laughable, more serious and credible voices have been urging the British state to advocate for the repeal of anti-sodomy laws globally. Two new London-based organisations – Kaleidoscope Trust and Human Dignity Trust (HDT) – have been at the forefront of this effort. Besides lobbying government, HDT’s core mission is to provide ‘technical legal assistance’ in the form of funding and/or advice to lawyers and activists working to challenge the criminalisation of homosexuality through courts. The Trust claims the support of a global network of local human rights lawyers as well as large multinational law firms. Indeed, its raison d’être lies in bridging these otherwise separate worlds, leveraging the resources of the latter (who commit to working for the Trust pro bono) to bolster the advocacy efforts of the former. To date, HDT has supported litigation in Belize, Jamaica, Northern Cyprus, Singapore and the European Union.¹⁹

Notwithstanding its avowed intention to match Northern resources and expertise with Southern needs, HDT’s modus operandi has attracted criticism. Soon after its formation, Trinidad and Tobago activist Colin Robinson described its approach as ‘unproductive’, arguing that the Trust had ‘muscled into a carefully planned constitutional suit by local and regional actors in Belize, daringly spun in the media as the Trust’s global campaign kick-off’.²⁰ Indeed, HDT CEO Jonathan Cooper, QC, seemed to reinforce this image in early publicity for the organisation. Speaking to The Guardian’s Zoe Williams, Cooper explained:

‘I email our legal panel, asking: anyone have any experience of litigating in Belize? Someone comes back and says yeah, we’ll represent you in this legal challenge. They bring in as their counsel [former UK attorney general] Lord Goldsmith, and the former attorney general of Belize, Godfrey Smith. We turn up as the international community, with a legitimate interest in the outcome of this case, but we do change the nature of the struggle because we have approached it on the basis that it’s a major legal challenge. That is our intention’. They’re not going to know what’s hit them, [Williams] observe[s]. ‘You almost feel sorry for the judge!’ Cooper replies, delighted. … ‘We will fundraise, and there is something rather charming that you can say to somebody: “If you give us £50,000, I can more or less guarantee that you will have decriminalised homosexuality in Tonga.” And actually, you know, that’s great.’²¹

Let us bracket, for a moment, the hubris of the claim of legal standing as framed in this way: ‘we turn up as the international community’. In contrast to Cooper’s focus on international legal intervention, Robinson emphasises local solutions that do not rely solely on law reform and that are led by...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures
• Notes on contributors
• Acknowledgements
• Introduction: Embracing queer curiosity
• Part I Complicities: Sexuality, coloniality and governance
• Part II Possibilities: Rethinking violence, war and law
• Part III Alliances: Making queer lives matter
• Part IV Risks: Troubling statehood, sovereignty and its borders
• Bibliography
• Index