Editorial #36: On the Failure of International Law and Paying the Price of Queer Joy

Personally, I look forward to this summer’s Pride celebrations with distinctly muted excitement, and the first parades I have been to this year have left, at best, a stale taste and many questions. How can we celebrate after the attacks of October 7 cut short the lives of scores of people who had been peacefully celebrating, and while millions in Gaza, Sudan, and the Congo, to mention just a few, continue to suffer every day from bombing, starvation, displacement, and unimaginable trauma? Can we manage to make Pride safe for everyone and remain political amidst attacks on free speech and freedom of assembly? How do we deal with pressure to self-censor, given the danger of our words being misconstrued and outright fear for our physical safety? And can we as international lawyers specifically continue to believe in narratives of progress, in “it gets better” when clearly, on the grand scale of things, it does not?

In Sarah Waters’ 2014 novel “The Paying Guests” (spoilers ahead!), a married woman of the “clerk class” and her upper-class landlady fall in love in post-World War I London. When the husband discovers that his wife has had an illegal abortion, a fight between the man and the secret lovers ensues during which the wife accidentally kills him. Knowing the legal system to be set against them, the two women become accomplices in covering up their involvement in the man’s death. However, they spiral into guilt as a lower-class young man is instead charged with the husband’s murder, which would carry the death sentence. As the trial starts, they make a pact to step forward if the man is found guilty – something the police and the public are convinced will happen. As anyone familiar with Waters’ writing can imagine, we as readers are drawn into this atmosphere of guilt and fear in an almost visceral way, dreading the outcome of the trial like accomplices to the killing we have witnessed on the pages, feeling the strain on the women’s once blossoming romantic relationship, tricked into trying to conceive of a way out of their moral duty that would not see them charged with a crime themselves.

At the end of the trial, something unforeseen happens – the young man is acquitted by the jury. The couple are suddenly free – and even financially set up due to the deceased husband’s life insurance – to go forth and live together happily ever after. In fact, they feel like they owe this step now more than ever to all the people they have hurt along the way.

Part of the brilliance of this ending lies, of course, in the fact that we’re left to decide whether the women would have stepped up to their commitment to justice if the law had failed to provide it for them. This involves some uncomfortable reflections on our own strength of conviction and on more far-reaching questions related to marginalized peoples’ relationship with law and justice. How far does the justification that the legal system will surely misread the acts and intentions of two queer women carry against the class prejudices the young defendant faces in his trial? What is the price of queer joy, and do we still get to enjoy it knowing its cost and our own moral failures?

By complete accident, I read “The Paying Guests” shortly after Jack Halberstam’s 2011 book “The Queer Art of Failure”. Using what he describes as a “low theory” approach, including analyses of pop culture staples from Pixar movies to The L Word, Halberstam explores the queerness in failures such as not knowing, forgetting, undoing, losing, illegibility, negativity, and passivity. According to Halberstam, these may offer “more creative, more cooperative, more surprising ways of being in the world”. He writes about how failure challenges the cultural obsession with (toxic) positivity, and how it can point to new modes of learning and knowing, especially in success-focused academia.

I think Halberstam’s approach to failure can help us tie together the questions posed by Waters with the challenges we’re facing when celebrating Pride in 2024.

For many queer people, Pride month is meant to be part of a redemption arc, fitting the “it gets better” storyline we’re all meant to be on – the moral arc of the universe or some such narrative. Ideas of law and justice are supposed to play a big role in there – celebrating developments like decriminalization or marriage equality as wins and demanding reforms such as self-ID laws.

The thing is, we’ve always known that stories of linear progress – or even progress at all, given huge discrepancies between and within jurisdictions and widespread backlash – aren’t quite true when it comes to queer rights (and might just be pinkwashing). And it gets harder to believe in these stories, be it for just one month out of twelve, when the world at large is descending ever deeper into violence and injustice – when queer people still have to explain to those who seem to revel just a little too much in descriptions of gays being thrown off high buildings that actually, they would rather even supposedly homophobic people not be bombed out of their homes, hospitals, and refugee camps  – and  when law, especially international law, is not necessarily succeeding at bending that moral arc. It can make us give up hope, resign from fighting, and resort to silence to minimize the risk of willful misunderstanding.

Waters’ main characters, we have to suspect, had it come down to it because of a failure of the legal system, would have failed morally, thus becoming complicit in the system’s failure to provide justice. In the end, their non-hero-like passivity, their performative not-knowing, combined with society’s gendered expectations around these qualities and the illegibility of their queer relationship, are what saves them from even becoming suspects in the investigation – and what ladens them with (survivors’) guilt. Their happy ending does not seem a success to us, but we cannot help being glad for their failures. Their silence does protect them, and it makes them neither villains nor heroines.

“Silence = Death” states the iconic poster from the fight against HIV/AIDS, a watermelon slice nowadays sometimes replacing the pink triangle that was meant to evoke the persecution of queer people in Nazi Germany. Halberstam is actually critical of the iconography of the triangle, finding that it obscures many queer people’s complicity in fascism. Yet the slogan’s salience in the story of the fight against an illness that got even more dangerous by being turned into a taboo subject cannot be overlooked. Yet the story of the anti-AIDS movement – as described in another of my recent reads, “How to Survive a Plague” by David France, the 2013 book based on the documentary of the same name – is another story chockful of failure – of illegibility, circularity, not knowing, and negativity, of trying to wring justice from an unjust system by legal and other means, of creativity and community, and of the mechanics and limitations of social movements composed of fallible individuals. It is a story whose happy ending comes too late for so many people, leaving so many others scarred for life, that it hardly is one at all – and it seems cynical to call it a success given the price paid for it.

Marina Veličković has written a stunning blogpost about what “success” of international law would look like in the context of Gaza. Given the scale of irreversible suffering, Veličković finds that an eventual success of law would be “quite distinct from a victory for justice”, and reflecting on many even critical scholars’ initial reaction to the ICJ’s first provisional measures decision, she concedes that she “had no expectation that international law would help, but it was nice to see it try”. I have argued before that international law is the queerest legal discipline. The field’s masochistic relationship to the near-constant failures of its subject to live up to its progressive promises might be a part of that, providing, cynically put, a sense of kinship. To quote Halberstam quoting Quentin Crisp rephrasing William Edward Hickson: “If at first you don’t succeed, failure may just be your style.”

To answer the questions posed in the beginning: there is no uncomplicated queer joy, and there never has been. We can find small pockets of it here and there, and we should savor them – but it is always mingled with bitterness no matter the amount of sugary rainbow sprinkles we throw at it, and law alone is not going to change that. As a queer, failure-informed international lawyer, Pride in 2024 to me means not falling for a narrative of success through law, and instead acknowledging the ways in which failure pervades international law. It does not mean silence, but it may involve using illegibility as a tool. It involves acknowledging the circularity of history and the fiction of linear progress and looking for alternative, “more creative, more cooperative” modes of justice. There may also be instances of queer joy – flavored with loss, with anger and disappointment, with guilt and injustice, as it has always been.

Want more suggestions for your summer “to be read” pile? Watch out for our “summer reading list of the #Ö” – coming soon!