After the World War II and its atrocities, a new international institution, the United Nations (UN) was created in 1945 to focus on the new challenges faced by the international community. One of the major challenges was the wave of decolonization which started between the two World wars. It was particularly difficult and painful for the two states, the colonial state and the colonizer state. International law and more precisely the UN charter were requested by the post-colonial States to justify their anti-colonial struggle and their right to self-determination.
These new independent States, most of time grouped under the label Third World, tried through the project of "Nation Building" to "catch up with the West" . This means that during the second part of the 20th century, the Third World was doing everything to become a strong State with its own kingly prerogatives, and to narrow the gap between the North, i.e. the United States and Europe and the South equivalent to the Third World. By the end of the 1980's, some scholars coming from the Third World proposed a critical approach to the grounds of the International law, saying that International law was firmly grounded in its colonial origins. Indeed, International law brought justifications for invasion and colonization by the Europeans. Now that the process of decolonization came to an end, at least in theory, it is time to rethink the foundations of International law.
[...] This way, scholars want to put an end to an International law perceived as an imperial project.[5] TWAIL is a movement built by opposition and contestation to the traditional concepts offered by the International legal scholarship. Indeed, TWAIL scholars found their resistance on the fact that for them the system of the actual International law is still based upon the ruins of the classic pattern colonized and colonizer. While TWAIL is considered as a critical approach of international law conducted by the Third World scholars, it is therefore of crucial importance to define which Third World is behind TWAIL. [...]
[...] They do not think in terms of geographical boundaries. It is more a transnational movement[7]: it is not stopped by political geography. In fact, they do not deny the extreme diversity of situations among the various states, they deal with it. As said before, this movement was built for criticising and resisting but it had to find some ways to touch and convince the International legal scholarship. Slowly but efficiently, TWAIL influences the classic doctrine of International law and actually achieves to challenge mainstream International law. [...]
[...] This is why alliances where made with other scholarship communities such as the Critical Race Theory (CRT) and the New Approaches to International Law (NAIL). The question now is to investigate whether or not the movement is able to adapt itself to the various challenges faced by the international community on the 21st century. For instance, environment and terrorism are now major topics on the international scene. This means that these issues will only be solve if there is a real global cooperation at the international level and, this time, the Third World will have to be part of the game. [...]
[...] Mickelson, K (1997-1998) “Rhetoric and Rage: Third World Voices in International Legal Discourse”, Wisconsin International Law Journal, Vol 16 No p 397 Cassesse A International Law, second edition. Oxford: Oxford University Press. p506 Anghie, A (2006), Evolution of International Law: Colonial and Postcolonial Realities”, Third World Quaterly, Vol No p 739 Mutua,M (2000), “What is Proceedings of 94th Annual Meeting of the American Society of International Law (ASIL), p36 Rajagopal, B (2003), International Law from Below: Development, Social Movements and Third World Resistance, Cambridge Uni. [...]
[...] For instance, the logic of the World Trade Organisation is not being the same as the logic of the conventions for the protection of the environment. But maybe as suggest BS Chimni , the divisions within TWAIL could be seen as a response to the fragmentation of the law. TWAIL scholars seem to prefer some specific areas of law such as the law of War, the International humanitarian law or the law of Human Rights. There are the laws that organise the relations between States and that preserve the well being of their populations. [...]
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