Phoebe Oyugi*
In May 2025, I was invited to speak about decolonisation of international criminal law at Humboldt University of Berlin. I carefully prepared a speech that lasted 42 minutes. In this speech, I began by highlighting that it was interesting that we were having this conversation in Berlin, where in 1884, European states met to deliberate on how to divide up our continent among themselves. Africans were not consulted.
Pivoting from that point, I traced most of the history of international law in general, and international criminal law, to show that it had been designed by and for empire. It does not serve us. Instead, it has been used through the years to justify regimes that brutalised, enslaved, extracted our resources and killed us. After delineating the history, I explained how the problem persists today. Finally, I made recommendations on the ways in which international law can be made to serve all of us and specifically what roles German academics can play in this transformation. I concluded by stating that since colonisation was designed in boardrooms and courts, then decolonisation must be, too. And since Berlin was crucial in creating empire, it can be crucial in ending it.
However, as I spoke, there was a shift in the room, and the room grew cold. My words, intended to open a conversation, seemed instead to close one. Some responded defensively, others dismissively. It was as though naming colonial legacies in international law had unsettled a fragile consensus.
Since then, I have been thinking, how did the people who went before us, like Bonaya Godana, handle the hostility in these spaces? And what does it mean to practice Third World Approaches to International Law (TWAIL) in 2025?
What is TWAIL, and why does it matter?
Third World Approaches to International Law (TWAIL) is not just a school of thought – it is a history of resistance. And like any history, it has evolved.[i]
TWAIL I (1950s–1970s): The first generation of postcolonial scholars, often leaders and diplomats, sought to use international law to reorder the world. Their project was one of optimism: sovereignty, self-determination, and the dream of a new international economic order.
TWAIL II (1990s): After the Cold War, a younger cohort of scholars – many associated with Harvard University – coined the term TWAIL. Their outlook was more critical than hopeful. They focused on exposing how international law remained complicit in colonial continuities, entrenching inequalities between North and South.
TWAIL III (today): A more diverse generation is asking how to keep TWAIL alive and relevant in a changing world. This wave emphasises lived experience, community-based practice, and engagement with urgent issues such as climate change, migration, and digital colonialism.
Each wave has been a response to its historical moment. TWAIL has never been static. It is an approach – a way of seeing and acting – not a fixed dogma.
Pushing the boundaries in 2025
The world order is shifting beneath our feet. The climate catastrophe is accelerating. Global governance looks increasingly fragile. The very idea of a 'Third World', once the rallying point for TWAIL, sits uneasily in a multipolar world where colonial legacies persist but take new forms.
This creates both urgency and risk. The urgency is clear: we need approaches that grapple with today's crises without losing sight of history. The risk is that TWAIL, if left unexamined, could harden into a tired dogma – something to 'drag around', rather than a living, dynamic way of thinking.
If TWAIL is to remain relevant, it must do more than critique. It must transform.
The role of lived experience
One of the questions I keep returning to is: can lived experience shape TWAIL? Should it?
I believe the answer is yes. In fact, lived experience is what keeps TWAIL from becoming static.
That day at Humboldt, my experience as a Black African woman in a European academic space was not incidental – it was the point. My positionality shaped how I spoke, how others heard me, and why my words provoked discomfort. This was TWAIL in practice: the theory came alive not on the page, but in the tension between my voice and the room.
More broadly, my community work in Siaya, Kenya, where young women confront the realities of climate injustice and reproductive health inequities, informs how I read international law. It forces me to ask how global legal structures intersect with everyday struggles, and how law can be transformed to serve those who are most often ignored.
TWAIL without lived experience risks becoming an academic exercise. TWAIL with lived experience becomes an evolving, grounded practice.
Taking TWAIL beyond the classroom
One of TWAIL's stated objectives has always been transformation. But transformation requires more than publishing papers or debating in classrooms. It requires building institutions, shaping policies, and imagining futures.
The truth is, TWAIL has sometimes struggled to move from critique to practice. We have been excellent at diagnosing problems, less effective at building alternatives. And yet there are glimpses of what transformation can look like: grassroots movements reclaiming land, African courts reshaping norms, communities insisting on climate justice.
The challenge is to take TWAIL beyond the seminar room – into the work of NGOs, local communities, policy debates, and even international institutions. And to accept that transformation will be messy, partial, and contested, but still necessary.
Bonaya Godana: A precursor to TWAIL
In thinking about TWAIL's future, I am drawn to the legacy of Bonaya Adhi Godana, whom we celebrate in this newly established international law blog.
Godana was born in Dukana, Marsabit, and rose from pastoralist beginnings to become one of Africa's most distinguished international lawyers and diplomats. His doctoral work on African freshwater law remains foundational. He co-founded the African Association of International Law, seeking to institutionalise African perspectives in global legal discourse. He later served as Kenya's Foreign Minister, parliamentarian, and peace negotiator.
Long before TWAIL became a scholarly label, Godana lived its practice. He carried African experience into international spaces as a voice that demanded recognition. He straddled the line between insider and outsider, critique and governance. I imagine that in him, the thin line between (de)colonial and international was not abstract – it was his daily life.
When I think back to that hostile seminar room, I feel a kinship with Godana's path. He, too, must have faced scepticism, dismissal, and resistance. Yet he persisted, proving that international law could be spoken differently, even from the margins.
The future of TWAIL
So where does TWAIL go from here?
First, it must remain dynamic. An 'approach' cannot ossify. TWAIL must evolve with the crises of our time – climate change, pandemics, digital colonialism – while staying rooted in history. Second, it must embrace lived experience. The voices of those positioned in-between – colonised persons in coloniser institutions, communities navigating global injustice – are not distractions. They are the pulse of TWAIL. Third, it must dare to transform. Critique is necessary but insufficient. TWAIL must experiment with building alternative futures: new institutions, new solidarities, new ways of imagining justice.
Closing reflection
When I think of TWAIL today, I think of both the discomfort of hostile rooms and the legacy of figures like Bonaya Godana. TWAIL is not only about what we write. We who subscribe to this approach need to embody it in how we live, where we stand, and the risks we take in speaking.
Celebrating Godana is not just about remembering his brilliance. It is about carrying forward his practice: unsettling power, bridging margins and centres, and insisting that international law must serve those it has long ignored.
The future of TWAIL depends on whether we can keep it alive – not as a tired dogma, but as a living approach that evolves, transforms, and, ultimately, changes the world.
* Postdoctoral Research Fellow, Humboldt-Universität zu Berlin.
[i] For an analysis of the generations of TWAIL, see, James Thuo Gathii, 'The agenda of third world approaches to international law (TWAIL)' in Jeffrey Dunoff and Mark Pollack (eds) International legal theory: Foundations and frontiers, Cambridge University Press, 2019, 155; Antony Anghie and BS Chimni, 'Third world approaches to international law and individual responsibility in internal conflicts' 2(1) Chinese Journal of International Law, 2003, 77-103; and more recently, Antony Anghie, 'Rethinking international law: A TWAIL retrospective' 34(1) European Journal of International Law (2023) 12-31.
