Raping Like a State


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. It 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 nonterritorial form of imperialism that fell short of colonialism proper: the practice of extraterritorial jurisdiction. In the end, the Article argues, 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.

About the Author

Professor of Law, Emory University. A.B., A.M. Stanford University; J.D., Yale University.

By uclalaw