Queering international law.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 10:45 a.m., Thursday, March 29, by its moderator, Ralph Wilde of University College London, who introduced the panelists: Doris Buss of Carleton University; Aeyal Gross of Tel Aviv University; Dianne Otto of the University of Melbourne; and Amr Shalakany of American University, Cairo.

INTRODUCTION

By Ralph Wilde *

Towards the end of the twentieth century the discipline of international law was enriched as certain important developments in ideas more generally, such as feminism and postcolonial theory, began to be integrated into it. It is no longer tenable to understand international legal theory only in terms of its origins in liberal thought.

That said, the process of opening up international legal theory to hitherto ignored intellectual developments is an ongoing one, and a continuing gap in the intellectual canon of this discipline is the tradition of "queer theory"--an approach to ideas rooted in the experience of non-heterosexual sexualities in the world. Rather as feminist approaches seek to understand how ideas generally have been shaped by ideas of the relationship between women and men in particular, so queer theory interrogates how ideas of sexual orientations are implicated in, and affected by, ideas of the world more generally.

Although there is now a relatively established tradition of applying queer theory to law, its application to international law remains sparse, especially if one moves beyond the treatment of lesbians, gay men, bisexuals, and trans people in human rights law. Yet just as feminist approaches to international law involve much more than considering how international law literally treats women--also addressing, for example, how ideas of the state, the use of force and so on are gendered--so the application of queer theory to international law has a rich potential to enhance understandings of our discipline and intellectual tradition beyond the issue of rights.

Given the limited time frame and the richness of the topic, the objective for the present panel is to try and explore this potential, by both looking across the range of possibilities and exploring select topics more deeply. Each of the four contributors is a pioneer in the exploration of queer theory and international law, and I am very grateful to them for giving up their time to provide their contributions and, within this, for engaging with the enterprise at hand in a collegiate and thoughtful manner.

"TAKING A BREAK" ([dagger]) FROM "NORMAL": THINKING QUEER IN THE CONTEXT OF INTERNATIONAL LAW

By Dianne Otto ([double dagger]

What does it mean to "queer" international law? For some, queering international law might mean extending the existing "normal," normative framework of international law so that it is inclusive of non-heterosexual experience and identities, but otherwise left unaltered--for example, by broadening the reach of human rights law so that it prohibits homophobic discrimination, recognizes gay marriage, and protects sexual expression as a private matter. However, I think that "queering" international law suggests something more than normative inclusion: it presents a fundamental challenge to the usual way of going about things. Ralph Wilde's decision to identify this panel as "queer," rather than "gay and lesbian," indicates to me a more comprehensive critique of regimes of the "normal" than can be answered by equal rights. The terminology of "queer" also suggests a conscious concern with pleasure, thereby "taking a break" from the politics of hetero-normative injury, and imagines human sexuality as much more diverse and shifting than the dualism of heterosexuality and homosexuality implies. (In fact, whether or not "sexuality" provides an adequate foundation for queer theory is a matter of debate for some queer theorists, but for present purposes, let us accept that it does.)

So, what is the "normal" in international law that queer theory challenges? One way of answering this question is to "take a break" from "seeing normally" by engaging sexuality as a primary category of analysis--by which I mean stepping outside the normal presumption of heterosexuality. Just as when feminists insisted that gender become a primary category, and new ways of seeing gender in problems that had previously looked un-gendered emerged, so too does a queer perspective make visible the [hetero]sexual ordering that is taken for granted as an underpinning of the "normal" system of international law. Through a queer lens, heterosexuality emerges as the basic model for all dominant systems of social relations--it provides some of the building blocks for international law's conception of "order." Understood as the elemental, natural, "normal" form of human association, heterosexuality not only shapes how we think of "normal" interpersonal and familial relationships, but is also the presumed basis for all forms of "normal" community, including that encompassed by the "normal" nation-state, international law's primary subject. A queer perspective also reveals how international law provides a conduit for the micromanagement and "disciplining" of everyday lives, including sexual pleasure, despite its many rules purporting to leave these matters in the domestic realm of jurisdiction.

Building on these thoughts, I will show how queer theory can highlight new problems in the definition of statehood and, then, how it can expose the "biopolitical" (1) reach of international law, by way of an example of a sexual panic.

On examining one of the traditional criteria of statehood from a queer perspective, the requirement of a "permanent population," it is immediately apparent that it is defined and constituted by heterosexual family ties, especially marriage. Census forms, surnames, birth registration, tax arrangements, inheritance, and often housing and health care, are all organized along the grid-lines of heterosexual kinship relationships, giving a strong nod to reproductive continuity as the primary basis for a "permanent population." Curiously, the debate about whether the Vatican can be properly called a "state" illustrates this nicely. One point that is made by those who want to deny its statehood is that its population lacks "permanency" because, as it is made up of celibate priests and nuns, it is not self-sustaining. (2) So the Vatican may provide a starting point for thinking through how a "queer" state might "look"--a thought that gives me pleasure. Seeing the links between reproductive continuity and the "normal" nation-state also helps to account for the often strong association between nationalism and homophobia. Superimposed on this foundational grid of heterosexuality, other layers of population definition may also be added, such as religious association, ethnicity, gender identification, and racial background. Like the underlying presumption of heterosexuality, most of these superimposed forms of association are also considered fixed and immutable. A queer perspective challenges the idea of the immutability of any aspect of identity and, perhaps unlike a gay rights perspective, theorizes these normal arrangements as disciplining both heterosexual and homosexual expressions of sexuality. While a gay rights perspective might focus its critique on the Vatican's denial of gay and lesbian rights, a queer perspective might see, more broadly, that the Vatican itself is disciplined and structured by ideas of heteronormativity.

In queer experience, primary forms of association are much more fluid and mobile, and there are elements of choice and self-determination, as well as isolation and disconnection, that come with being able to decide when and where to "come out." Many small signals communicate and perform queer association, like a particular flick of the wrist, inflection in the voice, a style of seeking pleasure. The heterosexual presumption has ensured that such fluid forms of association are considered marginal, yet arguably, non-kinship forms of association, like those that connect queer people with each other, are in the ascendancy in the world today. While I do not want to suggest that queering international law could--or should--save the nation-state from obsolescence, employing sexuality as a primary category reveals that it is based on an increasingly marginalized form of association. Queer theory suggests entirely different forms of association, which would be less concerned with patrolling territorial borders, defining populations, and defending the legitimacy of centralized governments, and more attentive to countering the disciplinary effects of modern forms of power, including the normalizing effects of presumed heterosexuality.

My second example is how queer theory can help us "see" how international law reaches much more deeply into the domestic jurisdiction of states than it claims--into the biopolitical management of our lives. This insight is not uniquely queer, but queer theorists are particularly attentive to the micromanagement of sexuality because sexuality is understood as a critical site for governmental power. The example I use here is the United Nations' official response to widespread allegations of sexual exploitation and abuse in peace support operations to illustrate three things: (1) how law can proliferate in response to anxieties about sexuality; (2) how queer perspectives can conflict with certain feminist perspectives; and (3) how easily sexual anxieties can serve as a repository for the relocation of other, non-sexual concerns, which may be far more threatening to the "normal" order than the impugned sexual practices.

The official response that I am referring to is the ban on sex between peacekeepers and everyone in the "beneficiary" populations of peacekeeping missions, imposed by the UN Secretary-General in March 2003. (3) This "zero tolerance of sex" policy is binding on all UN employees and is rapidly being made applicable to all other personnel...

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