Raping Like a State
Emory University School of Law
June 24, 2010
UCLA Law Review, Forthcoming
Emory Public Law Research Paper No. 10-111
It is a remarkable fact that rhetorically the state is gendered male, while state-on-state violence is continually represented as sexual violence. This Article applies the insights of queer theory to examine this rhetoric of sexual violation. More specifically, it analyzes the injury of colonialism as a kind of homoerotic violation of non-Western states’ (would-be) sovereignty. The Article does so by taking seriously the legal fiction of the state as an “international legal person.” Historically, colonial violence is routinely described as rape. What does it mean to liken a state to a person, and its conduct to rape? How does a state rape? Whom does it rape, and under what conditions? This Article examines international legal rhetoric to illustrate the normative masculinity that is attributed to sovereign states, and it argues that non-Western states’ variously deviant masculinities, together with their civilizational and racial attributes, rendered them rapable. The Article uses China as a case study. As a historically recognized yet “effete” civilization, throughout the nineteenth century China occupied an unstable intermediate position between the colonizable and the fully sovereign, savage and civilized, Africa and Europe. International law provided a vocabulary for transforming China’s alleged economic and political isolation into a violation of a “right of intercourse,” which in turn justified the establishment of a non-territorial form of imperialism that fell short of colonialism proper: the practice of extraterritorial jurisdiction. In the end, the queer rhetoric of international law did not simply reflect China’s inherent weakness; it helped make it internationally weak. In sum, the Article illustrates some of the general processes by which international law excludes and includes subjects. Sexual, gendered, and racial metaphors continue to structure uneven global relations even today. Queer enemies of mankind are not history.
Number of Pages in PDF File: 65
Keywords: China, international law, legal theory, queer theory, sovereignty, gender, sexuality, sovereignty, semi colonialism, trade, extraterritorial jurisdiction, kowtow, railroad sovereignty, Unequal Treaties, Eurocentrism, Sinocentrism
Date posted: August 24, 2010 ; Last revised: May 28, 2014
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