Let us Agree to Disagree: Reflections on Modirzadeh’s ‘Let us all Agree to Die a Little’

[Swati Singh Parmar is an Assistant Professor (International Law) at Dharmashastra National Law University, India. She has an interest in international legal theory and Critical International Law.]

“Let Us All Agree to Die a Little”: TWAIL’s Unfulfilled Promise, published in the Harvard Journal of International Law on 11 April 2024 by Professor Naz Khatoon Modirzadeh, is bound to have the readers agree and disagree, and the TWAIL scholars (hereinafter TWAILers) agree only a little. It is a meaningful read for encouraging Third World Approaches to International Law (hereinafter TWAIL) for self-reflexivity– an exercise that is fundamental, for any kind of scholarship, to refine the theoretical coherence and check the epistemological redundancies. But, in this paper, the demeanour and the programmatic tenor in which it is done, and its underlying presumptions are crafty.

The paper is architectured on the ‘supposed’ lack of TWAIL in producing “cohesive conceptual, doctrinal, or political positions” along with three solutions to address the same. While it pertinently calls for reflexivity in TWAIL scholarship, its subliminal proclivity to the ‘logic of utility’ and ‘performance’ is worrisome. It echoes the concerns raised by TWAILers in parts, but in a Mainstream International Legal Scholarship (hereinafter MILS) styled-voice with some portions undergirding presumptions and misplacements. 

A Flawed Premise of MILS 

TWAIL has been repeatedly criticised for problematising the universal IL and its praxis (for their complicity in creating and sustaining inequalities and injustices) without providing an alternative approach, while some critique it for not providing solutions or redressal. Not providing alternative approaches cannot be used congruently for not providing solutions, which the paper does.

This displeasure of ‘inability of TWAIL in providing solutions’ permeates the arguments in the paper and aptly so, but in doing so it does not acknowledge the central (and not the background) noises in which TWAIL functions. For instance, the restraints and misjudgments on TWAIL by labelling it as critical (by TWAILers and MILS) and locating it at the margin by the MILS, and the resulting, remoteness of TWAIL and TWAILers. Remoteness then does not remain a spatial construct but also espouses “harbours psychological, social, and cultural constructs” which are considerably condescending. A peculiar ramification of this is the subtleness of TWAIL’s tone for strong arguments, in contrast to the sharpness of MILSs’ tones. 

The paper’s claims bear the frustrations of TWAIL’s supposed unchartered and undefined territory. What it overlooks in claiming this is that TWAILers do have outlined TWAIL foregrounds, the premises are intentionally open-ended, and the semantic indeterminacy is possibly intentional. Whether TWAILers intend to foreclose it in a definition (given that defining itself is an exclusionary exercise) remains a future question of research (maybe empiricism). Some of the fundamentals in IL, like Sovereignty and jus cogens, are open-ended by design, though have not been assessed on this inherent characteristic.

The assessment questions are of extreme significance for any scholarship (for instance, their self-reflective potential), though they have not been posted to the MILS in a similar tone or at a similar microscopic level. 

An Assessment on Presumptions and Misreadings

The article starts with an assertion-appearing presumption of TWAIL’s “aspiration to transform the tools and institutions of international law”. However, it does not acknowledge that TWAILers seeking a subversion or collapse of the partialities in the universal IL regime “nourish rather than dictate”. More than an aspiration (and its portrayal in the paper of the one that has to be met), it is TWAIL’s potential to transform the tools and institutions that TWAILers have outlined–the potential of the collectivity of international law (hereinafter IL), though unfortunately, IL as a whole is not reflective of such egalitarian aspirations (which is precisely why TWAIL comes into picture). 

The usage of the word ‘fulfil’ (as a test for TWAIL to pass to be ‘qualify’ as a scholarship in the MILS’s evaluation) is noteworthy in its placement across the paper. The paper stretches the philosophical and ethical moorings of TWAIL (a just, inclusive, and neutral IL) to presume it as a promise of TWAIL that needs to be ‘fulfilled’ and then assesses TWAIL on that presumed promise. For instance, “non-fulfillment of its core promise” as a shortcoming of TWAIL in the paper is bemusing because of, first, the presumption of this promise and, second, its premise built on law as panacea. In another instance, she highlights students’ frustrations in seeing that TWAIL’s “transformative claims are not being fulfilled”, though my reading of TWAIL would see its transformative potential rather than transformative claims. Equality as an aspirational norm, one of the oldest, sustained, and valued norms, across all the Constitutions of the world, though no State (even the one with smallest and most homogenous population) can ever claim that it has been realised and fulfilled.

Modirzadeh argues that TWAIL calls upon its members “to forge legal governance projects and international institutions and frameworks in service of the Third World” referring by way of example to Eslava’s and Pahuja’s call to attune “the operation of international law to those sites and subjects that have traditionally been positioned as the ‘others of international law’”. This is a misreading of Eslava’s and Pahuja’s work. The usage of words “in the service of the Third World” in the paper has been used in a manner that it blurs the lines between ‘inclusion (and mainstreaming) of the sites and subjects of IL’ and ‘placing IL in the service of the Third World’ – reflecting a misinterpretation of the TWAIL. 

Another misplaced argument in the paper is that “many people come to TWAIL with rage” about the world they live in. Rage, as a short-lived passionate emotion, could never condition a sustained and meaningful presence of TWAIL for this long. Discontentment rather than rage from IL’s legitimization of the inequalities combined with an optimism of IL (as a tool of emancipating these inequalities) is apparently the cohesive force underlying TWAIL.  

Measuring TWAIL the MILSian Way

Modirzadeh tackles TWAIL questions in a MILSian way–a typical discomfort with the academic dissent espoused in any form of critical international legal scholarship (hereinafter CILS). The paper urges the readers to see TWAIL in a standardised, and accepted style of scholarship, casting a utility-driven compulsion on “academic decorum” on TWAIL. 

I find two primary concerns in Modirzadeh’s assessments of TWAIL: first, an unconscious conflation of the presumed promises and potential with aspirations, and second, the non- distinction of the intangible outcomes from the tangible outcomes. It is captivating to see that the tangible outcomes that we ‘value’ (the Imperial-capitalist logic also undergirds that) dominate the tone of Modirzadeh’s paper. If, at all, TWAIL is to be judged on outcomes for the compulsions of fitting into the MILS idea of ‘real’ scholarship, a distinction between the intangible outcomes and tangible outcomes of it needs to be underlined. TWAIL’s tangible outcomes, in terms of the criticality it invoked within a single generational time, challenged and reversed the foundations of the MILS (proving colonial confrontation to be central to IL and not peripheral as always portrayed in the MILS; the construct of state created by IL and not vice-versa; problematising the centrality of European cities to the historiography of IL and offering a replaced alternative view of this limited geography). These and other such doctrinal interventions and innovations are too robust for generations of IL scholars (and not only TWAILers) to hold and sustain. These doctrinal interventions have translated into some ‘MILSian tangible’ outcomes (including Chagos Advisory Opinion, South Africa v Israel). Despite TWAIL’s highly charged organic arguments, potent to create momentum for self-reflection for the MILS— TWAIL is met with embryonic evaluations by the MILS. 

Modirzadeh’s arguments are symptomatic of mainstream perceptions about scholarship to be done in a particular way (worthiness, utility, and achievement of scholarship). It showcases how any critical international legal scholarship is scrutinised by the dominant and mainstream methodologies in IL. The paper’s reliance on certain premises illustrates B. S. Chimni’s assertion on unacceptability as a “price that critical theories, in general, have to pay for contesting dominant ideas and approaches”. My reading of this paper also testifies to James Gathii’s finding on “skeptical scrutiny” of CILS (relating to race) and CILS being labelled as lacking “methodological clarity” and “realism”.

In some bits, the paper blames TWAIL for not satiating the obsessions of determinism, (positivist orthodoxy of) methodology and the other ‘standards’ in the beltway of MILS. It pushes TWAIL to the success-failure dichotomy and productivity scales, overlooking the nuances involved in these dichotomies. A more intriguing and basic question remains that out of diverse TWAIL insights, which ones, and on what rationale, have been chosen to be generalized for an imaginary homogenous terrain of TWAIL. If at all we may find an answer to this, can we generalize and homogenize MILS in a similar fashion?

Concluding Remarks

The intangibles of TWAIL sensibilities are enormous, and it indeed achieved some tangibles, as the paper also highlights. But TWAIL sensibility as a ‘rethinking of international law on egalitarian aspirations’ is not interchangeable with the ‘actualisation of subverting IL or injecting IL institutions with justice’. What is problematic throughout the paper, is the posing those questions to TWAIL and TWAILers that ought to have been asked from IL scholars (if not MILS in particular). Reading this paper is a reality check for TWAILers in terms of MILS perceptions and presuppositions of TWAIL even after a decade of its sustenance against the frictions and doubts of the MILS.

Though it raises some significant questions, they are not apposite. They seem to have risen from a narrow idea about TWAIL and its disordering potential (for example, this captivating work by Michelle Kelsall). The questions raised are the repeated doubts of an outsider (standard, mainstream and Western) gaze on TWAIL. The paper looks like a Mainstream International Legal Scholarship inspection of the TWAIL premises–as if TWAIL, as a marginalised line of enquiry, has to prove its worth to be included within the MILS circle.