A leap of faith: TWAIL meets Caribbean queer rights jurisprudence - intersections with international human rights law

Abstract

This article examines the legal status of queer rights in Caribbean jurisprudence. It conducts an analysis of Caribbean queer rights case law, in order to arrive at an understanding of the extent and dynamics of constitutional protection for these rights. It then uses the revelations from this analysis to determine how Caribbean queer rights jurisprudence has intersected with international human rights norms, values and rules. Finally, the article applies the TWAIL methodological approach to international law to argue that the Caribbean queer rights jurisprudence has not so far reflected the counter-hegemonic, resistance, anti-imperialist discourse that TWAIL champions, in spite of the socio-cultural and political Caribbean realities of homophobia. This homophobia mirrors some of the key conceptual notions and impulses of the TWAIL critique of international human rights law. I further argue that TWAIL, in spite of a number of its concerns about some of the norms and values found in international human rights law, including those related to gay rights, can nevertheless accommodate equality-seeking queer rights/human rights, if the core assumption is that queer rights ultimately are about the rule of law and democracy. I conclude that even though Caribbean courts are at an infancy in their reach to protect queer rights on the premise of international human rights norms, they have nevertheless certainly taken a leap of faith on an equality- preserving trajectory.

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