(Re)Searching for SWAIL. Part II

This is Part II of the interview. Part I is available here. The conversation also appears in the CEU Review of Books.

The relationship between SWAIL and TWAIL was a recurring theme at the workshop. In a RevDem interview, you described SWAIL as a ‘nod’ to TWAIL. In light of TWAIL’s broad and inclusive ethos (see e.g. Anghie (2023), pp. 16, 23, Modirzadeh (2023), p. 83), why do you think SWAIL is needed? Did the workshop help illuminate areas of overlap and divergence, and do you see potential for meaningful exchange or solidarity between the two approaches?

Marek Jan Wasiński (MW): At the outset, I want to stress that I’m personally indebted to TWAIL, understood as an intellectual attitude toward international law. For years, I worked in an academic environment that cherished ‘black-letter’ normative analysis. The process of socialisation, or ‘learning the language’ of the discipline, made me to unconditionally accept two commandments: First, the strict prioritization of the dogmatic method. Second, that certain questions, especially those that couldn’t be analysed without the violation of the first commandment—those requiring intellectual tools borrowed from IR, sociology, philosophy, literary studies, or other disciplines—were simply beyond the remit of ‘serious’ international lawyers. By the way, I think that experience is not uncommon and cannot be positioned strictly in geographical terms.

Be that as it may, my encounter with TWAIL—quite accidental, through a side interest in the African system of human rights protection—was a wake-up call. It taught me that what really matters is engaged scholarship, situated in living experience. That even anger can be apt. If I can’t answer a question, I shouldn’t dismiss it, but adjust my analytical apparatus and try again. So yes—long live TWAIL!

Now, directly to your question: TWAIL emerged from a particular historical experience, from the contestation of a global legal reality rooted in the legacy of overseas colonial domination. That origin shaped a trajectory of critical engagement centred on concepts such as civilisation, development, democracy, and human rights. I genuinely believe in TWAIL’s inclusive ethos; scholars from, say, Greece or Romania can contribute meaningfully to these conversations.

Also, the Vienna workshop suggested several promising avenues for mutual engagement, such as international investment law, migration, the resurgence of imperial ideologies in legal discourse, or race as an analytical category. Still, SWAIL follows a distinct trajectory, one shaped by the situated experiences of those working within it. That difference produces certain thematic priorities—such as, for example, teaching international law in Serbia, or underrepresentation of Eastern and Central Europeans in academic publishing—that may resonate less with TWAIL’s foundational concerns. In short, TWAIL and SWAIL represent two research agendas with a non-empty intersection, but also with some elements that remain mutually exclusive.

But at the end of the day, when we think about the potential for solidarity or meaningful exchange, I’d say we have to be cautious not to reify research agendas or treat them as entirely autonomous intellectual forces. TWAIL or SWAIL can be understood as possible meeting points, like heads in jazz that open space for improvisational solos, or like themes initiating the glass bead game… There are always people behind them: scholars influenced by ideas and experiences, yes, but still capable of shaping how they interact with others. To me, this means that solidarity and pushing together in the same direction may not be possible when we diverge on fundamental tenets—say, humanism or cosmopolitanism. But even then, exchange remains possible if we just share the deeply human capacities for curiosity and the drive to understand the other.

Patryk Labuda (PL): I am a big fan of TWAIL—hat tip, a TWAILer, Daniel Quiroga-Villamarín, first drew my attention to how Second World Approaches gave us the shorthand SWAIL. TWAIL is one of the two non-positivist approaches to most alter how I think about law after a mainly doctrinal indoctrination to the subject in Poland. I have always intuitively felt Eastern Europe and TWAIL were fellow travellers on questions of epistemic marginalization and thinking beyond the mainstream (while I grew sceptical over time of some assumptions of Western superiority, this was admittedly not a sentiment developed in Eastern Europe, where the desire to emulate the ‘West’ remains dominant). Regardless of some similarities, I can’t say my sentiments were often reciprocated, whether in TWAIL writings or in personal interactions with TWAILers who would usually summon ‘Europe’, phenotype, or some other issue to imply ‘we’ and ‘you’ are different. Let’s bracket that this sometimes came from Western-born and Ivy League-educated individuals, which created a sentiment of perplexity for someone born under authoritarian rule and educated primarily on a post-communist model. I should also acknowledge that my work and research in African contexts, where local respondents channelling TWAIL demands were often quite conservative, right-leaning, and sovereigntist, has spawned a healthy dose of introspection, which incidentally raises important questions for SWAIL’s ambitions as well.

But coming back to your question, I think there is a disconnect worth acknowledging. We know the slogan about TWAIL not being about a geographic place, but rather a project… I feel this (commendable) aspiration has not lived up to its promise. Setting aside essentialist incarnations of pseudo-TWAIL or those who parrot Putin’s claims of, e.g. ‘NATO expansion’ as the cause of his neo-imperial aspirations—overlapping incidentally with prominent westsplainers—it is hard to miss TWAIL’s ambivalence/silence on Ukraine, which has simply not been analyzed in the anti-imperial/anti-colonial register it deserves (Oksamytna, Hendl et al., Kassymbekova, Durdiyeva). My sense is that, like every approach, TWAIL is rooted in a time, place, and people, bringing with it implicit assumptions and exclusions: post-1989 Eastern Europeans don’t easily fit into that framework for at least three reasons. First, nuances aside, TWAIL is sceptical of capitalism, which is not easily compatible with places and peoples who suffered oppression in the name of ‘anti-capitalist’ struggle. Second, the experiences of empire in Eastern Europe are multi-directional, driven by both Western and non-Western empires—TWAIL’s understandable (Anglo-centric) focus on British (and some French) empire does not map neatly onto our region’s experiences (bracketing for now how colonialism may be different from imperialism, or how German colonialism may have differed between e.g. Africa and Eastern Europe). Last but not least, there is race, which is an under-explored topic in Eastern Europe for complex reasons that deserve careful study—recent work by Aleksandra Lewicki, Ivan Kalmar, or James Mark has, understandably, not yet been picked up by international lawyers, where scholarship on race and racism has surged only recently.

So there are some differences (TWAIL’s unquestionable success also means its elisions might be receiving heightened attention?), and similar questions can be asked of how some international lawyers fetishize Marxist theory, overlooking Marxist-Leninist practice (critically, Mälksoo, Grosescu and Richardson-Little) while often belittling (Tamás Hoffmann) what Eastern Europeans can bring to such conversations (so utopias remain… utopic?). That said, I mention these gaps and disconnects not to build walls, but rather as an appeal to think about some issues together in a more pluri-perspectival manner. Ultimately, SWAIL doesn’t just echo TWAIL in its name, but also builds on its insights, though of course it will approach some questions through a different lens, whether it be from the perspective of Eastern Europe or other liminal places, spaces, and positionalities.

How do you engage with the discomfort SWAIL may provoke: among ‘Second World’ countries that seek inclusion in the West and may hesitate to embrace a subaltern framing; among ‘Third World’ scholars who may be concerned about fragmentation or displacing the work of the TWAIL; and perhaps also in part of the ‘First World’ where claims from the ‘Global East’ might not be met with the same receptivity as those from the ‘Global South’? Do SWAIL scholars engage with different kinds of listening?

PL: Your question gets at something tricky. I said earlier that SWAIL has helped us build a community of scholars and exchange ideas. I stand by that. The flipside is that we have gained some nemeses: some (Westerners) critique SWAIL as another trendy form of anti-Western critique or worry about sharing space with ‘fellow Europeans’ in a crowded academic space; others worry about promoting Eurocentrism, ‘white innocence’ or right-wing nationalism; and, of course, ironically, many Eastern Europeans—as you rightly point out—resent being ‘brought down’ to subalterneity or denounce the project as self-interest on the backs of ‘real Easties’… meaning those still ‘stuck’ in the East.

I’ve heard versions of all of the above, and it can certainly make your head spin. The contradictions of all these intersecting (and often pre-emptive) SWAIL critiques should be apparent, but arguably they encapsulate liminality in its multiple forms—thinking and writing from an ‘in between’ space forces you to reckon with irreconcilable demands that tug in opposite directions. One hope I have for SWAIL is that it will help stakeholders think through the tribal notions of ‘we’ and ‘you’ that are increasingly embedded in our disciplinary discourse. Also, if you are not ready for some discomfort in challenging received wisdoms and inherited intellectual paradigms, then academia might not be the right place for you. So we expect pushback, but ultimately SWAIL’s focus on liminality is geared to self-critique and ‘globalizing’ Eastern Europe entails listening to other perspectives. We welcome these conversations.

MW: The examples of discomfort you have just raised are fascinating, as their motives and framing may lead to entirely different registers of intellectual exchange. The discomfort of aligning with a subaltern perspective may stem either from scepticism about the value of the ‘Second World’ as an analytical category, or from suppressing one’s situated experience in pursuit of a semblance of cultural capital linked to affinity with the West. Concerns about the relationship between TWAIL and SWAIL may reflect apprehension that the robust, polarising message of the former could be diluted, potentially weakening its political edge. Equally, such opposition might also conceal a struggle to retain primacy in the field of knowledge production. Finally, the lack of receptivity to SWAIL may signal either, again, a nuanced critique of its value as an analytical category, or simply the subordination of scientific curiosity to entrenched, dominant understandings of international law. Be that as it may, disregarding any of these concerns would amount to an abdication of scholarly responsibility. As scholars, we must remain curious. Curiosity—this insatiable appetite for seeing and experiencing both inner and outer reality anew—thrives on dialogical exchanges, which can unsettle petrified schemata and put our own views to the test. For example, this very conversation has helped me step into other shoes and become more attuned to possible weaknesses of SWAIL. So, yes, we will stay engaged!

Now, I can only sketch what might serve as a starting point for the kinds of dialogical exchanges that, I hope, will soon take shape with the first two series of SWAIL scholarship. Whenever I hear the kinds of concerns you mention, I feel the need to clarify what we mean—and do not mean—by ‘the Second World’ in this context. For me, it is not a geopolitical category defined by a certain level of development, as Deng Xiaoping suggested in 1974. Nor is it a semiperipheral structural zone in the global capitalist system, as Wallerstein described. Rather, it is an epistemic qualification marking certain positions that experience exclusions in the production of knowledge about international law. Of course, this epistemic position can be shaped by the geopolitical and economic location from which one’s individual horizon of understanding emerges. In this sense, there is often a significant overlap between the geopolitical and economic realities of, for example, Eastern and Central Europe and the experience of dual exclusion. But for me, and I want to be clear, this overlap does not exhaust the potential of the epistemic analytical category called ‘the Second World’.

Reflections on diasporic knowledge production and questions of representation—whose voices the movement truly represents—are debated in TWAIL (see e.g. Modirzadeh (2023), pp. 101-107). What steps might SWAIL take to avoid ‘ventriloquizing’ the lived experiences of Central and Eastern Europe?

MW: Well, just under my skin, I am afraid of—and reluctant to accept—any form of exercising power or engaging in gatekeeping grounded in an asserted access to an alleged ‘true’ source, ‘genuine’ core, or ‘authentic’ experience. This is not an affinity with relativism, but, again, rather a sceptical attitude toward the inevitable distortions and potential abuses that such a drive toward purity can produce. Still, downplaying this issue or setting it aside would go against the very impulse behind the concept of SWAIL, which builds, inter alia, on the postulate of epistemic plurality and hermeneutical openness.

SWAIL, as a self-reflective way of thinking about international legal scholarship, has undeniably been shaped by a particular kind of lived experience. This experience is woven from many threads: cultural belonging, professional attachment to a specific geopolitical space, educational background, and more. It can sharpen one’s sensitivity to certain themes and ways of understanding international law, both as a normative system and as a professional practice. Yet the experience hasn’t really found a place in dominant legal discourses or in the ways those discourses tend to frame what counts as relevant, important, or legible. They often just don’t align with the preferred themes.

The thing is, this kind of exclusion has a double effect. It shapes not only how certain perspectives are overlooked or misunderstood, but also how others end up projecting their own interpretive frameworks onto what they don’t fully grasp, even when they mean well.

That’s why I don’t see SWAIL as representing any specific region, group, or position. It’s not about drawing borders around who ‘qualifies’. It’s about creating space for a more dialogical exchange where perspectives shaped by different histories and experiences can actually meet. Personally, I have no issue at all—quite the opposite!—with scholars who have no direct connection to, say, Eastern and Central Europe, but are thinking from that space or in conversation with it. Eric Loefflad’s article on Paulus Vladimiri is a great example, as it brought much-needed attention to a brilliant legal thinker who deserves a wider audience. And to me, that’s exactly the kind of work SWAIL should encourage and help make visible.

PL: Modirzadeh’s is a thought-provoking critique, and potential SWAILers would be well advised to acquaint themselves with her piece. Yet, while I suppose comparisons to TWAIL are unavoidable given our acronym, I’ll re-emphasize that SWAIL’s aim is not to focus on a geographic space for its own sake. Eastern Europe and the Second World, Central Asia in particular, are a point of departure, but the theme of liminality that underpins some of our experiences has applications that can transcend geography and force everyone to rethink aspects of international law tout court.

That said, your question raises an important point about people from the region that we should reflect upon harder. One of SWAIL’s aspirations is to promote critique at universities in the region, which means we’re invested in bringing this message ‘home’, so to speak. However, it remains a fair question as to how this framing will resonate. Marek is, of course, better placed to engage in dialogue in Poland, while my university, CEU, is now only partly based in Hungary. Time will tell whether law faculties will open up to interdisciplinarity and (self-)critique under SWAIL’s influence.

Another issue is how prominent the differences between parts of Eastern Europe may prove to be. Some divergences transpired already at the Vienna workshop. For instance, some Balkan peoples have much less negative memories of their (home-grown) socialism, which contrasts with Soviet satellite states like Poland, not to mention the Baltics or Ukraine that had been wiped off the map on the altar of anti-capitalist struggle. Moreover, Russia’s impact beyond its borders decreases incrementally the farther you go. Serbia offers a peculiar geopolitical and mnemonic counterexample vis-à-vis Russia that encapsulates as well as any the liminality this project foregrounds and is a useful reminder that ‘Eastern Europe’ is hardly a monolith, allowing for easy generalizations.

Who is SWAIL’s audience—who is it speaking to? Is it relevant to practitioners of international law, and how do you see the utility of SWAIL scholarship?

MW: If we accept that the SWAIL project was launched at a workshop in Vienna, then SWAIL scholarship – drawing on that moment – is only about to show its face. I expect that very different pieces may be classified, by their authors or by readers, as SWAIL scholarship. The answer to your question, then, will vary depending on the intellectual framework it inhabits. For my part, I don’t see SWAIL as just a regional version of TWAIL. I think of it more as a professional attitude—epistemic, self-reflective, ethical, and dialogical—adopted by scholars of international law who want to peel back the layers of dual exclusion we discussed earlier, and in doing so, better understand international law. In that sense, the potential audience could be, I am afraid, quite limited, as we risk leaving out, for instance, international legal practitioners. Their professional stance is deeply interwoven with the structure of the field they occupy, which does not easily accommodate individual self-reflection on how they themselves understand international law. But, as I have said, no gatekeeping is required here. At the same time, we might also call SWAIL scholarship those pieces that examine how imperial ideology employs normative tools to create legal and political space. This is something that can be fascinating for scholars and practitioners alike.

PL: Marek and I might see this slightly differently, but I would certainly like SWAIL to be relevant to both scholars and practitioners. The latter dimension is less developed for now, but I’ve taken some small steps in my work on the Special Tribunal for the Crime of Aggression against Ukraine toward leveraging an Eastern European inflection of post-colonialism to influence diplomacy. I don’t know if any of my writing has shaped the work of practitioners, but I don’t see why SWAIL couldn’t lead to a revival of interest in our region’s relationship to international law, including how states, scholars… and practitioners from the region engage with the present. Either way, I would certainly hope SWAIL helps international lawyers—scholars and practitioners—to think through some difficult choices that need to be made, for instance, on Israel-Palestine, climate change, or global migration. Some of these questions are framed along binary left-right political divides, or a North-South axis, but they intersect with complex historical and regional dimensions that get lost in generalist commentary on ‘Europe’, ‘the West’, or ‘developed versus developing’ countries. As noted before, if nothing else, broadening the conversation through SWAIL is supposed to encourage Eastern Europeans to engage robustly with interdisciplinary and critical thinking about international law.

TWAIL scholars have spoken about the sense of both purpose and pressure that comes with writing for a larger cause and representing a region (see e.g. interview with Anghie (2019)). Is there a similar emotional or intellectual weight attached to being among the first voices articulating SWAIL?

PL: To be fair, we might not be the first voices to push for a specific regional voice, and I don’t want to overstate the novelty of what we’re doing. They may be a generational issue to this project that intersects unevenly with geography. I’ve seen tepid responses to SWAIL from senior lawyers from the region, while a post–1970s or –80s generation may now be asking new questions about their place in the world. It also remains to be seen how current university students—born sometimes after some Eastern states entered the EU—will respond to this frame… not to mention future generations. For now, there is a sense of excitement and curiosity among people involved with SWAIL to be speaking a common language, even though—as I noted before—we don’t always agree on everything, and it remains to be seen where all this is (not) going.

MW: There’s an old joke that comes to mind when you mention a ‘larger cause’. I first came across it a few years ago in a book by Andrea Bianchi, which, by the way, should be required reading for anyone doing a PhD in international law. My version goes like this: Two fish are swimming in a pond. They happen to be at an academic conference, holding those small plates with the required finesse during the coffee break. One turns to the other and says: ‘You know what? I met the Frog before that last panel—excellent, by the way—and the Frog says we live in water.’ The other, calm, cold, and lofty, replies: ‘Water? Show me the water.’ This comes, obviously, in the tone of a professor full of gravitas. If SWAIL aims to show us the water we live in, you can see why I feel a mixture of purpose, pressure… and also unease.

But, more seriously, I think SWAIL can work on two levels: as a nudge toward individual scholars’ self-reflection, and as an impulse that fosters a more inclusive fusion of horizons, making the discipline more intellectually open. The aim here is not to translate situated understandings of international law and deliver them neatly packaged for consumption—or, worse, for shelving. SWAIL can act only through dialogical engagement. So, for me—and I know for Patryk too—the dominant feeling is a kind of excitement, like waiting for the possibility of that fruitful engagement.

And, perhaps, also something more. Philip Allott once said: ‘International lawyers are the most privileged of all lawyers. International law is the law of all laws, the law of the whole human world.’ With the hope that SWAIL can shift the discipline, even if just a very little, we hope to contribute to that change, and then, at the same time… but I’d better stop here before slipping into a too-much-pathos ending.

Finally, what is next for SWAIL? How would you describe its intellectual mood, and what kind of (normative) agenda—if any—is beginning to take shape?

PL: There are some longer-form publications lined up, and plans for follow-up events in Europe, Africa, and potentially in Asia. I have drawn on an Eastern European lens to think through some international criminal law questions (see here and here), whereas my current research situates Eastern Europe in a global post- and neo-imperial context vis-à-vis racial and civilizational hierarchies in international law, and I draw partly on Eastern European experiences to interrogate how Anglo-centric concepts shape scholarship and double standards claims in our discipline.

We’ll have to wait and see how this project evolves, but Ukraine’s continuing anti-imperial struggle is likely to feature prominently in how our community navigates our relationship to international law qua aspirational and counter-hegemonic discipline. I’ll also be curious to see how scholars navigate the reality of declining US power and emerging hegemons outside the West, which—I believe—is likely to force a scholarly reassessment of international law’s role in the global order.

Beyond that, it may be too early to make bold predictions. SWAIL might be around for just three years, and that’s fine. If it takes on a life of its own, that’s fine too. For now, what’s driving SWAIL is a pursuit of self-reflexivity and greater mutual understanding by globalizing the connections between Eastern Europeans, a tentatively postulated liminal ‘Second Worldness’, and international law. These tasks seem valuable in and of themselves, whatever else might happen.

MW: Right now, we expect that the upcoming publications will help to prompt that long-sought dialogical engagement with colleagues attuned to other methodological registers or approaching our discipline critically from differently situated perspectives. Hopefully, SWAIL will keep rolling along.

As for a possible normative agenda: my own attitude to SWAIL—as a cognitive posture that calls for cultivating awareness of multiple epistemic horizons—makes me cautious about formulating specific normative claims. Still, if we accept the premise of an epistemic–normative correlation, I mean, that normative inclusivity can be conditioned by epistemic inclusivity, then SWAIL cannot remain without consequences also in normative terms. But here, we enter a vast field of contingencies—enough, I suspect, to nourish an entire three-day workshop.