Queering International Law

by

Dianne Otto, Emily Jones

• LAST MODIFIED: 26 May 2023
• DOI: 10.1093/obo/9780199796953-0245

Introduction

Queer scholarship in international law can broadly be understood as questioning or destabilizing the normative—that which has been “taken for granted” or “naturalized.” However, defining queer theory is made harder by the fact that much of queer theory seeks to avoid definition. Queering is a continuous process, a conversation on many levels as opposed to a blueprint that can be clearly defined. Queer theory in international law can therefore perhaps be best defined by looking at what it has sought to resist. Key focal points have included thinking about sex and gender [identity] in alternative and non-hegemonic ways, challenging fixed categories of identity and binary thinking, calling for alternative forms of kinship to be fostered outside and beyond the formal ties deemed recognizable by the state (such as hetero-marriage), and, reaching well beyond what one might think of as its “proper objects,” revealing the exclusionary and hierarchical conceptual architectures of international law emanating from its heteronormative underpinnings. We include a wide array of queer scholarship, including works that focus more on challenging global power relations as well as those that focus on queer lives. The latter were selected, however, due to their counter-normative/counter-binary focus. Therefore, this entry does not cover the wide spectrum of LGBTI+ rights scholarship, but rather seeks to identify what we consider to be some of the queerer pieces from that field. Queer analyses often draw upon and complement feminist theories of intersectionality and postcolonial/TWAIL theories of imperial power and narratives of so-called progress. Like other strands of critical international legal research and activism, queer interventions seek to understand and challenge the multiple ways in which unequal power and oppression are naturalized and normalized through law. What queer scholarship brings to this field is a broader array of key analytical vectors of oppression, centering tropes of gender [identity] and sexuality in new ways, a keener awareness of the exclusionary effects of binary and hierarchized ways of thinking, a commitment to radically rethinking what has been assumed to be “normal,” and an activism that takes all life seriously, including nonhuman life. We have sought to introduce some queer terminologies into this entry by the headings we use, which pair conventional international law nomenclature with queer alternatives. In this way we hope to convey, in a small way, the questioning of the normative that queer theory encourages. Where we use the acronym LGBTI+ and its other variations in our abstracts, we have followed the choice of the author.

“Normal” Law

Queer approaches to “normal” international law have “arrived” only recently. While all the branches of international law fall under the umbrella of “normal” law, we use the term here to flag a queer (abnormal in a positive sense) sensibility that encounters normal law as profoundly exclusionary, rather than universal as claimed, and sets out to challenge its taken-for-granted-ness. Our use of the term “normal” also invokes Michel Foucault’s concept of “normalization,” introduced in his first book, which was published in English in 1977. For Foucault, normalization refers to the many social processes through which individuals are disciplined into conformity with pre-established norms. These disciplinary technologies include judgment, education, training, surveillance, classification, inspection, examination, ranking, and so on. In this context, our use of the terminology of normal also flags concern about the disciplinary power of the law and its potential to control and dominate. This introductory section is divided into two parts. We begin with anthologies and special issue law journals that have played a catalytic role in encouraging this new queer scholarship. In the second part we list early journal articles that helped to announce the arrival of queer approaches to international law by inviting a fundamental questioning of its heteronormative order.

• Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. London: Allen Lane, 1977.

  The French post-structuralist philosopher Michel Foucault traces the historical shift in practices of carceral institutions from physical punishment to “discipline,” between the mid-eighteenth and mid-nineteenth centuries in France. Foucault argues that new “normalizing” techniques for the management and control of prisoners emerged in this period, replacing the earlier punishments of the body. He hints at other disciplinary institutions where the same technologies of control are applied, including hospitals, schools, barracks, asylums, and factories.