16.1 Introduction
At the conference she organized in Copenhagen in 2022, Hanna Eklund suggested that:
Understanding more about colonialism and the EU legal order is not merely, although is importantly also, a historical exercise; it has the potential to constitute a starting point for examinations of the EU law of today.Footnote 1
A decolonial approach to research and teaching in European Union (EU) law constitutes such a starting point. It is an exciting approach which has the potential to open up the world of European integration and EU law to a new generation of Black scholars and audiences, both in Europe and beyond.
This paper will consider what this starting point could look like – what happens when we take colonialism as the starting point for our interaction with EU law? How does a decolonial approach amend the purpose, principles and practice that inform our research and teaching in EU law today? After a short explanation of the meaning of ‘decolonization’, I set out the purpose, practice and principles of this approach in relation to EU law.
16.2 Decolonization in General
First, a general word on ‘decolonization’: in everyday use, ‘decolonization’ refers to the overt end of political and military rule by invaders who forcibly occupy and seize control in a formerly independent territory, as the United States did in places such as Hawaii or European powers did across Africa, Asia and the Caribbean in the late nineteenth century.Footnote 2
However, in education, the word ‘decolonization’ refers to the long-term pedagogical impact of political colonization, such as the continued use of the colonizers’ language and scholarship to teach and assess learning. It is most often used in conjunction with the curriculum, as in ‘decolonizing the curriculum’, to refer to advocacy in higher education for a fundamental examination and reconsideration of norms embedded as tradition in these scholarly environments – norms of access, knowledge production and dissemination, teaching and assessment, scholarship and authorship, recognition and reward. This word is not without its own problems: as Folúkẹ́ Adebisi suggests, it has become something of a buzzword, dis-anchored from its political and anti-colonial origins as use has spread through university settings in the United Kingdom (UK).Footnote 3
While the following quote focuses on the UK, it is useful for this paper on EU law because it explains the origin of the concept: it anchors decolonization in imperialism and stresses the goal of decentralizing imperialist ways of seeing through reflection on the locus of power underpinning knowledge production and dissemination – what is taught, and what materials are used to answer which questions:
We must first understand what is meant by ‘colonial’ education and its intrinsic link to academia […] The British education system itself, is firmly rooted in colonial epistemology, which centres and upholds the British empire and the forms that it takes today. What this can look like in schooling is a whitewashed retelling of the history of empire that speaks only to its ‘successes’, whilst omitting its evils, the voices of the oppressed and the lasting legacy of imperialism today. Decolonising education, however, is often understood as the process in which we rethink, reframe and reconstruct the curricula and research that preserve the Europe-centred, colonial lens.Footnote 4
Decolonization is therefore an active process of first, restoring visibility to untold his- and herstories and second, reframing the gaze, to change the way of seeing. Decolonization should be approached as a ‘speaking back’ (hooks) and a return of the gaze (Spivak) which proactively redirects both the voice and vision with the same focus and discipline as a return by tennis champion Serena Williams.Footnote 5 In other words, there is power in the decolonial agenda – as put by Adebisi: ‘Decolonisation invites us to think of power differently. Therefore it is disruptive. Decolonisation requires discontinuation of the epistemologies that have produced colonialism. Decolonisation demands dismantling, delinking, decentring or disobeying epistemic coloniality of power and the reproduction of hierarchy upon which it proceeds. So, that the university may be superseded by an equal pluriversity of knowledges [italics in original]’.Footnote 6
Decolonization, or the decolonial approach, is therefore not simply a theoretical idea, but can have a practical impact on social justice – it has a purpose, principles and practices. In this contribution I consider what this means in relation to teaching and research in EU law and the EU legal order. I begin in Section 16.3 with purpose.
16.3 Purpose
There are three parts to the purpose of a decolonial approach in EU law – excavation, dissemination and reversal.
Excavation is what took place at the conference in Copenhagen. While a decolonial approach is not synonymous with colonization, papers illustrated how the two overlap. Contributors highlighted and thought about the imprint of colonialism in its varied iterations on the EU constitution, discussing ‘the ways in which colonialism has shaped the EU legal order’ as well as the situation of individuals and societies subjected to EU law. Through archival work, contributors were able to track the footprints of colonization, and in some cases its preservation, in the process and structures of European integration.Footnote 7
It is indeed hard to deny that colonialism has left an institutional and social imprint on Europe and its peoples, as well as on the peoples of those colonized lands, whether they are resident in the formerly colonized territories or in Europe. We see this imprint very clearly in policy approaches and public discourse concerning development, immigration and asylum – the EU’s New Pact on Migration and Asylum,Footnote 8 as well as in plans by EU Member States to deport asylum seekers to third countries,Footnote 9 and rhetoric and practice from the EU on pushing – back out to sea.Footnote 10 These policies stem from a certain way of viewing peoples seeking safety, the majority of whom are racialised and from formerly colonized countries that may be undergoing economic or political upheaval.
This colonial imprint on the EU and European structures can only be understood once it is excavated – like an archaeological find, this work needs to be conducted carefully and purposefully, as for example, by Janine Silga in her work on the immigration–development nexus.Footnote 11 Beyond this, excavation can include investigation on the macro-environment in the EU to ask how colonialism has shaped European consciousness – how did Europe use the colonized lands to create a new self-understanding that became the basis for the foundations of the EU legal order? A further question for excavation would focus on relationships between individuals and institutions in the EU legal order, or even relationships between individuals in the EU legal order.
Excavation is not conducted for its own sake. The second purpose is to disseminate knowledge on the existence of these imprints. Answers to the questions above create knowledge that would broaden the story we tell about the evolution of European integration and EU law, as well as who tells those stories: it would create space for stories that at present are only seen sporadically in the cinema, to be discussed in the classroom.Footnote 12
Inclusion of such stories would require review of the topics covered in the EU canon, especially (but not only) in relation to the history of European integration – the way in which it is taught and the questions that are asked. The role of former colonies would not be studied and researched as part of EU external affairs but would be integral to the understanding of the foundations of the present-day EU.Footnote 13 Students would be clear that EU law and policies extend beyond the continent to include various overseas territories and countries. In relation to teaching EU law, this would not necessarily require expansion of an already full curriculum but reflection upon where examples to illustrate core principles are drawn from – why not use cases concerning voting rights in overseas territories when discussing EU citizenship, or Europol and Frontex as examples in discussions of indirect or direct access to the Court of Justice of the European Union (CJEU)?
To summarize, decolonization in higher education is not just an intellectual exercise but has important practical applications for social justice. The ultimate purpose of adopting a decolonial approach in EU law is to review current ideas underpinning EU laws and policies, ideas that may be harmful to racialized peoples in Europe when, for example, seeking asylum, protection from the police or even medication during childbirth.Footnote 14 Excavation is therefore important because it creates the knowledge basis for revision and a potential for renewal – how might the public approach to immigration across the EU change if (a) the extent of European colonization and (b) the varied contribution of peoples from the colonized territories to European wars were common knowledge? Maybe it would not make any difference, but without sharing this information the answer cannot be known.
16.4 Principles
What principles should support these three purposes of excavation, dissemination and reversal? I suggest core principles are intentionality, internationalism and pro-democracy. I discuss these here, beginning with intentionality.
As mentioned previously, the decolonial approach is not an abstract exercise but a study of power and the delivery of justice. As such, it demands intentionality – a proactive determination and discipline to identify ‘dominant discourses and the influence of dominant groups in what/who we research’.Footnote 15 Yet, at the same time, this work requires sensitivity – the decolonial approach is a reminder that intellectual activity requires vigilance and care. When we think about decolonization, we should in particular be intentional about reflecting upon our own assumptions bearing in mind that even our own beliefs ‘about rationality derive from a literature that developed at a particular time and place’.Footnote 16
Internationalism is a necessity as the boundaries of the colonial imprint are hard to ascertain – while the focus of this volume is on Europe, it must be recognized that colonialism was a system of injustice with multiple nodes and many tentacles of power. Colonization was a global endeavour that spanned continents and crossed countries; a decolonial approach of necessity requires the acknowledgement of this. This especially applies to a multi-level entity such as the EU, which institutionalizes at a regional level the prevailing structures that perpetuate ‘enduring asymmetries of power between the global South and global North’.Footnote 17 Thus decolonizing teaching and research in EU law must be at the same time supranational, cross-continental and intra-national to understand how the contours of power in EU law affect the lives of those still present in formerly colonized territories, as well as those from these territories present in Europe be it as refugees, asylum seekers, entrepreneurs, workers or citizens.
Finally, a decolonial approach must be pro-democracy. Colonization was inherently anti-democratic – it took away all rights, including enjoyment of basic human rights and equality, from those who were colonized. Thus a decolonial approach must at heart be committed to the perpetuation and ongoing protection of democratic principles for all. As I have written elsewhere,
decolonization of EU law is important because education is inextricably linked to democracy and democratic institutions. Exclusion in the context of higher education – from research and scholarship to the scholars themselves – results in homogenous social thinking and social institutions which, as recent events have shown, all too easily become hosts of practices and policies that undermine democracy. Pursuit of the decolonization agenda should therefore be seen as the key to a stronger European democracy.Footnote 18
Decolonizing the teaching of EU law is therefore an opportunity to reinvigorate the study of democracy – in all of its deficits, surfeits, tyrannies – in Europe, and how this underpins anti-discrimination, equality and the rule of law. In relation to EU law, this principle acts as a reminder that decolonization is part of a larger agenda: it is ultimately about social justice and building a strong and intentionally anti-discriminatory democracy in Europe. This is important to stress explicitly, given democratic ‘backsliding’ in many locations around the world.
16.5 Practice
I would suggest that there are four core areas of practice: decolonization must be attentive to identifying omission – the voids and silences in EU law – so as to create inclusive narratives and diverse narrators; it should be empirical, systemic and collaborative.
A decolonial approach in EU law would encourage sensitivity to who is missing from the stories that we tell about European integration and EU law. Where for example are the colonial territories and their contribution to the rebuilding of Europe after the Second World War in the run-up to the Treaty of Paris? What attention was given to the colonies during this period?Footnote 19
Other than my own, at the time of writing only one textbook on EU law mentions the relations of the European Economic Community (EEC) in the late 1950s to former colonized territories, even though colonies were a reality for four founding Member States: France still had ‘possessions’ in Africa, Asia, the Caribbean and the Pacific; Belgium ruled over Zaire and held ‘trusteeship’ of Rwanda – Burundi; the Netherlands maintained dependencies in the Pacific (Surinam) and Caribbean (Aruba); and Italy had a mandate over Somalia.Footnote 20 Only Germany had no colonial connections anywhere in the world, having reluctantly relinquished control over its territories as part of the post-First World War settlement at Versailles.Footnote 21 While Luxembourg may not have possessed any colonies of its own, a 2022 exhibition at the National Museum of History and Art in Luxembourg City exposed how it benefitted from colonialism through its agreements with colonizers such as Belgium. These colonized countries were integrated into the EEC Treaty under Articles 131–136, which set out the idea adopted from France of ‘associationism’ as a method to manage relationships between the colonial powers in Brussels and these countries.Footnote 22
Also missing is information on the contributions made by people from colonized countries to rebuild Europe: for example, those from the Caribbean who served the UK as personnel in the armed forces (currently trying to rebuild their lives after the Windrush scandal in 2018) and – especially during the COVID pandemic – as keyworkers in hospitals and local transport.Footnote 23 Their living and working experiences are nowhere reflected in EU studies or EU law. Miller and Nicola make the point that the failure of legal scholarship to pay attention to the role of Europe’s colonial history in Europe’s present has significant consequences for knowledge production in Europe.Footnote 24
Studying these omissions will enable EU law to become more inclusive, and should stimulate reflection on the demographics of EU law: who teaches EU law? What actions, interventions and scholarship are recognized and how does this influence the distribution of rewards – studentships, research grants, Visitorships, posts and even the naming of Chairs. When will we have the Claude Moraes Chair in EU Law,Footnote 25 to recognize the first Black MEP, or the Olivette Otele Chair in European History, recognizing the only Black woman in the UK to be a professor of history?Footnote 26 Reducing racial homogeneity is urgently needed in relation to research, teaching, management and leadership in the EU and EU law. As I have asked in the past, where are the Black professors in Europe? Or more specifically: where are the Black professors in EU law? The field has done an abysmal job in attracting Black Europeans – there are less than a handful of Black scholars working in this field.
Homogeneity is bad for knowledge production in the EU and for EU law. To adapt a statement made by Lady Brenda Hale: EU law, the EU legal profession and the EU courts ‘are there to serve the whole population, not just a small section of it. They should be as reflective of that population as it is possible to be’.Footnote 27 There are practical consequences to this homogeneity: the absence of a critical mass of Black scholars results in a lack of research into the living and working experiences of Black Europeans. This absence also facilitates attacks on theories that prioritize research into these lives: French academics faced little opposition when in November 2020 they decried critical race theory as contributing to the killing of a schoolteacher.Footnote 28 While academics of colour in the United States are numerous enough to fight back against political attempts to silence them, this does not apply in Europe.
A decolonial approach in EU law should therefore prioritize empirical studies. There is much scope for this. For example, case law from the European Court of Human Rights and studies by the European Union Agency for Fundamental Rights (FRA) indicate that racial harassment and violence by the police is commonplace across the EU but there is no academic empirical research drilling into this phenomenon.Footnote 29 This would entail looking into the data to interrogate deaths in police custody across the EU of healthy young Black men and women such as Oury Jalloh and Christy Schwundeck in Germany.Footnote 30
The emphasis of these empirical studies should be on systemic biases: the purpose of this research agenda is to highlight structural and institutional processes that make Black Europeans invisible by paying no attention to their living and working experiences. This applies to both the private as well as the public sphere. There are opportunities for private law scholars, such as those interested in company law, to think about what can be learnt from a decolonial approach to business practices across the EU. Or indeed in relation to equality, diversity and inclusion agendas, the legal competence in Article 19 Treaty on the Functioning of the European Union (TFEU) has been used to develop Diversity Charters across the EU Member States, which are used to promote and support best practices in diversity management in many private (and some public) organizations.Footnote 31 They are adopted voluntarily by businesses in the Member States working in collaboration with national ministries. To date, there are twenty-six Diversity Charters, spanning the breadth of prohibitions listed in Article 19 of the TFEU.Footnote 32 It is noteworthy that they have proliferated in countries that have only recently adopted laws prohibiting discrimination beyond gender. Little is known about these and their impact on improving living and working conditions for Black Europeans. Research on these would therefore make an important contribution to EU law.
In thinking about co-production as a practice, this needs to be approached horizontally in terms of multiple disciplines and sectors. Like the conference mentioned at the beginning of this article, decolonizing research and teaching in EU law is of necessity multidisciplinary – it is a task for EU lawyers as well as historians, sociologists and political scientists. It is also beneficially cross-sectoral. Collaborations between the CJEU/Commission and schools/universities are necessary. Without interesting Black students in EU law, there will always be a dearth of Black legal practitioners and professors in this field.Footnote 33
Co-production in decolonial research is raised to an ethical issue in two ways. First, it is linked to the pro-democracy principle discussed earlier – integral to democracy is participation, and this is increasingly important in relation to research cultures. Second, decolonial research in the ‘Global North’ must be in collaboration with the ‘Global South’, promoting interaction and conversations across and between peoples in these regions wherever they may be, remembering that these are geopolitical and historical terms – being of one does not preclude being of the other.
In particular, excavating and reversing the imprints of colonialism in EU law and empirical research into EU law should be conducted together with those having direct biographical links to peoples that were colonized. This extends to citational practices, which can often result in extraction and silencing.Footnote 34 For in the absence of co-production, decolonizing EU law merely becomes a guise for neocolonialism – a twenty-first century version of colonialism where the lives of Black Europeans are visible but only via the voices and choices of non-Black Europeans. At the same time, as succinctly put by Adebisi, care must be taken with co-production to not conflate ‘embodied difference with epistemic difference’.Footnote 35
16.6 Conclusion
A decolonial approach to research and teaching in EU law encourages adoption of a way of thinking that is non-Eurocentric and removes the privilege afforded to Eurocentrism.Footnote 36 This approach moves legal education in this field towards a reframing and reconstructing of questions and methods. It incorporates but goes beyond the diversity agenda: diversity can still exist within a ‘western bias’ while decolonization attempts to go ‘further and deeper in challenging the institutional hierarchy and monopoly on knowledge’.Footnote 37
It would help EU law to reflect upon what is seen as worthy of study, as well as the way in which core issues pertaining to Europe are told and who has legitimacy to tell those stories: why is there in this field no study of the lives of Black and minority ethnic Europeans, in all of their diversity? When evidence from the FRA suggests that policing across the EU may be marred by racism, why do we not investigate this? Why are there so few Black and minority ethnic scholars engaged in the field who might lead this work? EU law needs to shift its vision from the mainstream to the margins; in doing so it will, as put by Ali Meghji, ‘shake off its commitment to colonial ways of thinking’ so that decoloniality, in all its aspects, becomes embedded in EU law and studies.Footnote 38
A focus on excavation will result in the practice of questioning the normative content and assumptions of EU legal studies – the production of themes and priorities, the interests reflected in topics and assessment, as well as an analysis of those whose research is taught and whose work is published. As suggested above, a decolonial practice in EU law would emphasize co-production, a systemic focus on omission and empirical work. This work would be informed by the principles of intentionality, an international perspective and pro-democracy.
Thought needs to be given on how to sustain a decolonial approach in EU law as an effective practice in the long term. Creating opportunities for teaching and research relating to decolonizing will enrich EU legal studies intellectually as well as build future capacity for faculty diversity in the field. As the American Bar Association argues, ‘diversity, both cognitive and cultural, often leads to better questions, analyses, solutions, and processes’.Footnote 39 A broad range of views can discover better answers for our complex and intersectional world and potentially produce new solutions. In order to achieve this, legal scholars in the United States are turning to investigate elite schools’ diversity hiring practices and the impact that this has on education and ultimately, on social justice and society.Footnote 40 However, it must be remembered that a decolonial approach goes beyond diversity to question ways of seeing and knowing, as well as who is seen – not only Jean Monnet but also Olivette Otele – and accepted as having knowledge worth knowing.
Finally, adoption of a decolonial approach in teaching and research in EU law would offer a moment for pause and reflection across the continent on two interrelated broader questions: first, what is legal education for and second, who should the legal profession be training to create an accessible and sustainable justice system that both supports and strengthens democracy and non-discrimination?Footnote 41 Higher education – both in Europe and on the EU – should reflect the goals of equality and justice that the continent espouses in the world: put simply, a decolonial approach in EU law can help the EU become the change that it wants to see.
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