Queering TWAIL: tensions between postcolonial sovereignty and international law in queer legal reform. The intersection of TWAIL critiques and LGBTQ+ jurisprudence in the Commonwealth Caribbean

Abstract

The social and political reality for LGBTQ+ people in the Commonwealth Caribbean is a culmination of legal, political, and social colonial-era structures. These structures manifest in colonial-era legal statues that selectively target LGBTQ+ individuals and reinforce widespread homophobia throughout society. As a result, LGBTQ+ individuals are constantly met with social oppression in the form of social exclusion, harassment, discrimination, physical violence, and verbal abuse. To illustrate how colonial-era laws currently impact the lives of LGBTQ+ individuals living there and how queer rights jurisprudence have evolved over time, an intersectional theoretical lens is applied that merges third world approaches to international law (TWAIL) with queer theory. This thesis incorporates Caribbean jurisprudence and scholarship from leading critical theorists to illuminate how colonial legacies have contributed to contemporary anti-LGBTQ+ attitudes judicially, politically, and socially. The development of a “queered TWAIL” approach examines how Caribbean courts navigate the paradox of using international legal instruments, which are argued to be rooted in Western universal traditions, to overturn laws originally imposed by British colonizers. This thesis analyzes five key judgements from across the Commonwealth Caribbean that dismantled colonial-era laws criminalizing same-sex intimacy and cross-dressing bans, revealing tensions between postcolonial sovereignty, international human rights norms, and the persistence of heteronormative legal frameworks.