6.1 Introduction

In this chapter, I wish to consider the European Union (EU) integration project, and in particular the single market and the social/labour dimension of that market, through three frames of analysis: through the colonial lens with which this edited collection is preoccupied, in particular by reference to what has become known as ‘racial capitalism’; by taking into account the temporal and the spatial dimensions of EU integration; and, finally, with regard to the ways in which the development of the EU’s social dimension, or ‘social regionalism’, influences and constrains the policy space available to another regionalism project, namely the African Union (AU), to develop its own version of social regionalism.

The familiar accounts of the origins of the European integration project foreground the shared memory of the Second World War and the commitment to post-war reconstruction of Europe, in order to promote both peace and economic growth. Much less attention is paid to the other inheritance common to the EU Member States, that of empire, colonialism and decolonization. Yet, the EU integration project – and in particular the single market – owes much to what one might call the political economy of colonialism. My argument in this chapter is that the EU market integration project and the ability to embed that market in the ‘social’ are premised on the ‘racial capitalism’ of European colonial dominance over the territory and resources of other regions, on European responses to the process of decolonization and also, to a lesser extent, on the continuing neocolonialism of the relationship between the EU and the AU, between the regionalism projects of former colonizing and colonized states.

This chapter explores the temporal and spatial aspects of the emergence of regional (EU) social and labour law against the backdrop of decolonization: the moment (temporal aspect) of decolonization occurred simultaneously with, and I would argue was woven into, the EU market integration/market creation project, such that the boundaries (spatial aspect) of the single market were never simply the territorial boundaries of the six Member States. Occurring contemporaneously with the formation of the European Economic Community (EEC), the process of decolonization has resulted in an EU which is deemed to be postcolonial, however inaccurate it may be to assume that colonialism is wholly in the past.

A key contention of this chapter is that there has been no clean break between the colonial past of the constituent Member States of the EU and the neocolonial present of the European project: colonialism and empire are implicated in the version of capitalist modernity which the EU market-creating project represents, and enmeshed in the social dimension of that project. In pursuing this argument, I make use of the language of ‘racial capitalism’, one version of which contends that the emergence of capitalism was per se premised on global racialized inequalities, that race permeates the social structures emergent from capitalism. Further, as this chapter will explore, this colonialism has contemporary resonances and implications: in constructing the EEC, former colonial or imperial states created a sovereignty-pooling (market) integration project which enjoys largely asymmetrical ongoing trade relations with a regional integration project, the AU, comprising mainly former colonized states. Thus, European colonialism continues to reverberate, having a material impact on contemporary EU social and labour law; to shape EU–AU relations; and to determine the conditions of possibility for the evolution of a social dimension for the AU’s own market integration project.

6.2 Colonial Forgetfulness, Decolonization and EU Post-War Identity

March 1957 is a key moment in time, not only for the reasons already familiar to scholars of the EU. On 6 March, Ghana became the first country in sub-Saharan Africa to gain independence from (British) colonial rule, heralding a wave of independence by former colonies freeing themselves from rule by European states.Footnote ¹ This was followed on 25 March by the signing of the Treaty of Rome, with narrative accounts emphasizing the technocratic and institution-building aspects of the new Communities, rather than any broader geopolitical ambitions.Footnote ² Not surprisingly, therefore, a key assumption underpinning dominant understandings of the EU integration project is that colonialism and empire reside in the past, and were in any event an inheritance of the individual nation states, not attached to the EU project itself. This is a somewhat striking assertion, given the presence in the EEC Treaty of the express acknowledgement of Member States’ continuing colonial entanglements, in Part IV on ‘Association of the Overseas Countries and Territories’ (see later). Characterizing Member States as the ‘carriers’ of colonialism conveniently erases the fact of the significant economic role played by colonial extraction in the construction of the domestic economies and industries which subsequently served as the foundation for the common or single market.

One way to understand the colonial underpinnings of the EU is through close attention to the temporal and the spatial dimensions of EU integration. This could be through use of language and conceptual frameworks from the emergent field of legal geography, with its spatial awareness and focus on the way in which space, time and law are co-constituted.Footnote ³ Or by using the language of the ‘chronotope’, the literary device adapted for sociolegal scholars by Mariana Valverde,Footnote ⁴ which requires ‘that we consider how temporalization affects spatialization and vice versa’,Footnote ⁵ namely, that the temporal and the spatial dimensions of life and governance affect each other and should be analysed together. Taking the lead from Valverde, who takes pains to emphasize that chronotopes do not amount to a grand theory, or a world-scale theory, or a classification system,Footnote ⁶ I am interested in the simplest level of analysis which the language of legal geography or chronotopes inspires, to make sense of the relationship between colonialism and EU integration across time and space/geography. For instance, by means of the Treaty of Rome’s recognition of ‘overseas countries and territories’, locations (nations, even) outside the territorial continental boundaries of the EEC Member States became, juridically and constitutionally, part of the geographic reach of the new EEC.Footnote ⁷ In the meantime, decolonization struggles, such as the Algerian War of Independence (1954–1962),Footnote ⁸ meant the formal boundaries of the new European community, for instance with regard to the reach of the customs union, were subject to change,Footnote ⁹ once those overseas countries, territories, dependencies and settlements gained independence.Footnote ¹⁰ As Hanna Eklund has uncovered from a study of the archival material from the Treaty of Rome negotiations,Footnote ¹¹ while the drafters of the treaty were well aware of anti-colonial sentiments and movements, not least of all as evidenced by the Suez Crisis, nevertheless the treaty itself was silent on the question of the legal implications of the acquisition of independence by the ‘overseas countries and territories’. It was only in 1967 that ‘[a]n oblique acknowledgement’ was made of the independence of several of the countries listed in Annex IV, in a two-page avis au lecteur, appended to the treaty.Footnote ¹²

Despite, or rather because of, the endeavours to ‘unite’ Europe and Africa in the ultimately unsuccessful ‘Eurafrica’ project (see later), the prehistory of the EU integration project is one marked by a distinct amnesia in relation to Europe’s colonial past.Footnote ¹³ Here, it is important to distinguish between acknowledgement of the colonial entanglements of the individual European nation states, which have been widely studied, and the rather under-theorized recognition that colonialism is a shared (Western) European experience,Footnote ¹⁴ one which significantly colours and shapes subsequent European integration. As Gurminder Bhambra observes, the assumption underpinning the EU project and self-understanding is that it is individual nation states, not the EU itself, which are the carriers of colonialism and responsible for its legacy. This is how she puts it: ‘The articulation of cosmopolitanism as a specifically European phenomenon rests on a particular understanding of European history that evades acknowledging European domination over much of the world as significant to that history. It also disavows examining the consequences of that domination for the contemporary multicultural constitution of European societies’.Footnote ¹⁵

It is, though, important to recognize that the EU today is a legacy from a period when many Western European states operated as empires,Footnote ¹⁶ and that European integration was in no insignificant part a response to the need to forge a new ‘European’ identity and regional role of global significance in the aftermath of decolonization.Footnote ¹⁷ Let’s unpack these two observations. First, the continuing colonial identity of Member States at the formal dawn of the EEC is exemplified most clearly in the recognition of ‘overseas countries and territories’ in the founding treaty framework,Footnote ¹⁸ with Belgium, France, Italy and the Netherlands entering the new Community with colonial holdings associated with though not integrated into the Community. More striking was the separate legal formulation conceived to deal with Algeria and the French overseas departments, which were constitutionally treated as parts of France and thus integrated into the Community, for instance being subject to treaty provisions such as those on free movement of goods and services though not to those on free movement of workers.Footnote ¹⁹

Second, it is necessary to interrogate the fact that EU integration was taking place against a backdrop of decolonization. While decolonization was not a primary motive for European integration, it was an important complement, previously overlooked. Europe’s global standing had already been shaken by world war, subsequently by Cold War and the creation of a bipolar world; and also crucially from the loss of hegemonic power which decolonization represented. This insight is neatly exemplified in the description of Nasser, president of Egypt, as ‘the Federator of Europe’; in other words, that the 1956 Suez Crisis served – among other things – as a strong argument in favour of European integration.Footnote ²⁰

Indeed, as Peo Hansen and Stefan Jonsson argue, negotiations for integration were predicated on the very idea of bringing Africa as a ‘dowry to Europe’.Footnote ²¹ In other words, Africa’s natural resources – namely, land, labour and markets – were to be made available for the European project.Footnote ²² Hansen and Jonsson show how many of the projects seeking to institutionalize European cooperation, or even integration, up to and including the EEC, were premised on the assumption that Africa would be incorporated into this European project – the establishment of ‘Eurafrica’.Footnote ²³ The justifications for Eurafrica were myriad: access to land, access to raw materials, access to markets for European products – in exchange for? Indeed, the former ‘civilising mission’ justifying European involvement in Africa was rebranded using the discourse of ‘development’ and human rights.Footnote ²⁴ It is clear, though, that what was to be offered in the creation of Eurafrica was a partial form of belonging or integration for colonized peoples: to be included were the resources of the continent and the labour power of the inhabitants rather than the people themselves, given the absence of free movement for workers.Footnote ²⁵ Having been formally recognized and encoded in a treaty which incorporated the colonial possessions of the founding Member States,Footnote ²⁶ ‘Eurafrica’ has become what Hansen and Jonsson, drawing inspiration from Fredric Jameson, refer to as a ‘vanishing mediator’: the term disappears from the major narratives of European integration.Footnote ²⁷ However, discontinuity at the level of discourse hides continuity at the level of economics, and obscures the fact that the colonialism in the relationship between Europe and Africa has arguably not been erased but merely shifted to the terrain of neocolonialism. According to Kwame Nkrumah, first post-independence president of Ghana, the Treaty of Rome and the creation of the EEC represented ‘the advent of neocolonialism in Africa’, or ‘collective colonialism’,Footnote ²⁸ referring to neocolonialism not because the phenomenon was novel but indeed because it was a continuation or revived form of imperial domination, in particular economically, over nominally independent states.Footnote ²⁹

For remarkably consistent perspectives on the colonial inheritance of the EU, vis-à-vis the Member States, it is instructive to consider the statements of European Commission presidents and high officials, spanning an almost fifty-year period. In 1975, president of the European Commission François-Xavier Ortoli observed that the Community was better placed to engage with the continent of Africa ‘because the European Communities in contrast to some member states were less contaminated by a colonial past’.Footnote ³⁰ A later president of the European Commission, José Manuel Barroso, speaking in 2007, referred to the EU as ‘the first non-imperial empire’.Footnote ³¹ Such allusions to the EU as representing a more benign form of empire can, more recently, be seen in the October 2022 speech of EU High Representative for Foreign Affairs Josep Borrell who claimed that ‘Europe is a garden’ whereas ‘[m]ost of the rest of the world is a jungle, and the jungle could invade the garden’.Footnote ³² These perspectives contrast markedly with the sentiments expressed by the European Parliament, in particular in its resolution of January 2024 on European historical consciousness.Footnote ³³

6.3 Racial Capitalism and the Building of the EU Market Integration Project

Understanding how, as Hanna Eklund puts it, the structures of colonialism have shaped the EU legal order, requires a particular focus on the economic as well as the legal. To do so, I draw on the language of ‘racial capitalism’, which has gained prominence as a productive way to reconsider the relationship between law and political economy, historically and also in contemporary times. At their simplest, theories of racial capitalism contend that race and colonialism are deeply imbricated in the evolution of capitalism – with the emergence of capitalism predicated on global racialized inequalities, in particular Atlantic slavery; or, as Cedric Robinson would have it, with race permeating the social structures emergent from capitalism.Footnote ³⁴ It is this structural analysis of race and political economy which is so compelling. Race or racism is in most legal accounts understood as individualized discrimination or prejudice. In contrast, I want to emphasize how race and racism operate at the level of social system, and also as a dominant rationality, to structure economic and societal institutions, for instance in relation to the aforementioned European colonial dominance over the territory and resources of other regions. As Rob Knox explains: ‘Capitalism was born in Europe, and spread and consolidated its hold over the globe on the basis of European colonialism and imperialism. In the process, European states fundamentally transformed the political-economic systems of non-European societies.’Footnote ³⁵

As I have set out elsewhere,Footnote ³⁶ the emerging tradition of economic sociology of law provides a helpful guide for conceptualizing, in a scalar manner, the economic and legal aspects of social life,Footnote ³⁷ which are operating on four, mutually constitutive, levels: actions or actors, interactions, regimes and rationalities.Footnote ³⁸ ‘Actions’ and ‘interactions’ is a useful way to understand how most race discrimination in employment is conceptualized within law, for example as prejudice between individuals or within institutions. Legislative enactment at EU (and national) level focuses on ‘less favourable treatment’ and ‘discrimination on grounds of racial or ethnic origin’,Footnote ³⁹ suggesting that ‘race’ is conceived as a matter of demographic attributes. By this account, racism exists at the smallest level of social action and is the product of acts or beliefs of individuals or groups. However, the EU directive also acknowledges the role of institutions in racialized ordering – for example in the concept of indirect discrimination, wherein facially neutral organizational rules have a differential impact – suggesting that legal rules can contain a more complex understanding of inequality, as operating at the level of social action. Further, to the extent that there is an awareness in law and policy of systemic racism in labour markets, not solely discrimination at the level of an organization, this comes closer to the recognition that racism structures societal institutions, and that ‘race is inscribed and reinscribed in markets and other economic structures’.Footnote ⁴⁰ As seen in the recognition of institutional racism, racism can be understood as a social regime, that is the broader culture that makes up society. The fourth level of analysis of society, economy and law turns to the rationalities behind a given regime or social order, such as modes of reasoning or ‘ways of apprehending the world’.Footnote ⁴¹ My interest in this exploration of the racial underpinnings of markets, is in the regimes and rationalities that constitute market society at large. Racism or racial capitalism is thus the dominant rationality, or way of seeing the world, which I argue underpins the market economy and the racialized inequality of the contemporary labour market.

A further insight of economic sociology (and economic sociology of law), in particular the Polanyi-inspired variant,Footnote ⁴² relates to the importance of state action and social relations as constitutive of markets, but also that markets may be constrained by or embedded within institutions – for instance, institutions of labour law, social citizenship or welfare states as ameliorative of the human consequences of market opening and trade liberalization.Footnote ⁴³ My interest here is in the potential scope for that Polanyian ‘embeddedness’ to occur at the level of the region as well as at the level of the state; namely, how can we understand the scope of regional collective action to ameliorate markets. And in exploring the scope for regional integration with a social dimension in the EU and in the AU, one may see that such social regionalism in one region (the EU) may operate to constrain the evolution of social regionalism in another (the AU).

That the EU’s market-creation project was made possible by virtue of the ‘embedded liberal bargain’ is an argument I have pursued elsewhere,Footnote ⁴⁴ but a further insight is that such social embedding, or social regionalism, was in turn made possible by virtue of colonial extraction – a racialized capitalism underpinning EU integration. The story of liberalism embedded at regional level, alongside the varying forms and depth of state or domestic intervention which John Ruggie had in mind,Footnote ⁴⁵ has become a more familiar characterization of the EU project: EU economic integration shored up by a social community built on adjustment mechanisms at the national level, such as social regulations, social transfers and public infrastructure, as well as by a growing body of social law and policy at the EU level.Footnote ⁴⁶ But the colonial turn in EU studies means that as scholars we should be more alert to the contemporary echoes of the imperial past of the EU and its Member States. In particular, I would argue, industrialized nation states of the global North were able to embed the market through social transfers and (varieties of) welfare state regimes. The ‘embedded liberalism’ which underpinned the redistributive capacities of these individual states and, in due course, underpinned the redistributive capacities of the EU integration project itself, was predicated on the transfer of value from the global South – hence constraining any subsequent development of that region’s own version of ‘social regionalism’. The pattern of exchange between the ‘core’ and the ‘periphery’, the extraction of raw commodities from the South and the commodification of the labour power of colonial states made possible the redistributive welfare states of the global North – and, crucially, facilitated the functioning of the single market through the embedding of EU market liberalization within institutions of social citizenship at domestic level. Historian Giuliano Garavini, writing in 2012, observes: ‘As developing nations in Asia and Africa became independent, they mainly came to be seen in western Europe as useful providers of labor and raw materials, potential outlets for surplus manufactures, junior partners to be preserved from the spread of international communism’.Footnote ⁴⁷

This neocolonial approach by individual nation states which had been colonial empires predates their entry into the EEC,Footnote ⁴⁸ but found continuation within the efforts to build the EEC internal market. The point I wish to make here is that European integration coexisted with empire, but also that there was no clean break with the colonial past of the constituent Member States. Formal independence has left these underlying inequalities unchallenged. As Chantal Thomas puts it: ‘The legal rules of the international economic order, though informed by liberal ideals of egalitarianism, perpetuate Northern economic hegemony by failing to address the entrenched economic inequality of the South resulting from the colonial era.’Footnote ⁴⁹ A particularly striking example of the continuity of such economic hegemony is the colonial history of the CFA franc and its transition, as Kako Nubukpo traces, from being the currency of the ‘French Colonies of Africa’ to franc of the nominally independent ‘African Financial Community’.Footnote ⁵⁰

Historically, African economies have been deeply integrated into the global economy; but the terms of that integration have been highly unfavourable to say the least. As Walter Rodney observes: ‘Africa helped to develop Western Europe in the same proportion as Western Europe helped to underdevelop Africa.’Footnote ⁵¹ Western European powers appropriated economic surplus from their colonies, and this materially and substantially aided their own industrial transition from the eighteenth century onward.Footnote ⁵² It is also important, though, to recognize the continuing significance of ‘colonial drain’ in the post-war construction of European markets, labour markets and hence of the single market.

Revisiting the embedded liberal bargain through the lens of racial capitalism highlights the interconnections between the colonial inheritance, social solidarity and varieties of welfare state and labour market institutions in EU Member States. The resources to be fought over between labour and capital in the metropole, the concessions won by workers against capital and the resultant redistribution which made possible the social welfare state and industrial citizenship of individual Member States owe a great deal – even after formal independence – to colonial drain from countries of the global South. This subsequently enabled the embedded liberal bargain of the EU social market project.

6.4 Colonial Extraction Abroad and Social ‘Solidarity’ at Home

To illustrate the colonial underpinnings of the embedded liberal bargain at EU level, it is helpful to track its underpinnings at domestic level. Here, there is a parallel effect between the EU level and what occurs in national systems of social citizenship. Given the significance of colonial extraction for the resourcing of the post-war welfare state and related labour market institutions in European states such as the UK, how inclusive was that welfare state settlement of racialized others – non-white colonial subjects migrating to work in the metropole? To what extent were there (racial) hierarchies within, or exclusions from, the post-war European ideal of the solidaristic social state?

In the UK, legislation passed in 1946–1948, implementing the Beveridge Report,Footnote ⁵³ introduced a welfare system which formally eschewed the poor law-era distinction between the ‘deserving’ and the ‘undeserving’ poor,Footnote ⁵⁴ in favour of a system premised on universality: such as tax-funded, redistributive social support and flat-rate benefits.Footnote ⁵⁵ At the same time, the British Nationality Act 1948 ushered in the new legal status of ‘Citizen of the United Kingdom and Colonies’,Footnote ⁵⁶ which had the effect (if not the intention) of granting a right to enter and remain in the UK to all those born in the UK, in a British colony or in an independent Commonwealth state. Independent Commonwealth states in 1948 included Canada, New Zealand and the newly independent India and Pakistan.Footnote ⁵⁷ Remaining British colonies at the time included territories and countries in Africa, Asia and the Caribbean, for instance, Kenya, Hong Kong, Jamaica. However, full access to the labour market and to the benefits of the welfare state were not in practice universally granted to racialized subjects.

The post-war welfare state was grounded on universality, but full belonging or citizenship required a particular type of participation in the labour market, and ideally within the primary labour market. Racialized and migrant workers in the UK, contracting for work under what we would now call atypical or non-standard terms and receiving lower hourly pay than British workers, would for instance be liable to pay lower social insurance contributions – and thus be disadvantaged when seeking to access welfare benefits in the event of unemployment, illness or accident.Footnote ⁵⁸

More broadly, across Europe and North America, post-war welfare states failed to fully benefit women, racial minorities, guest workers or immigrants; or actively excluded them from education, healthcare, secure employment, housing support, government-backed financial services and pension schemes.Footnote ⁵⁹ As Lionel Zevounou shows in the case of migrants from the former French colony of Morocco recruited to work in the SNCF (Société Nationale des Chemins de Fer Français (French National Railways)),Footnote ⁶⁰ such unequal treatment in relation to pay, working conditions, promotion opportunities, pensions and other social benefits was typically rationalized as legitimate differentiation based on nationality, rather than understood as illegitimate discrimination based on race.Footnote ⁶¹ Crucially, the exclusion of racialized workers and colonial subjects is not merely an exclusion from the national welfare state and labour market institutions, but also from social citizenship within the EU – because that social citizenship within the EU is premised on these national institutions. This is because EU social citizenship is mainly marked by a privileging of market citizenship: individuals are rights-holders by virtue of their ability to operate as market participants (‘economically active’ citizens moving between welfare systems).Footnote ⁶² In limited circumstances, the personal scope of beneficiaries of Member States’ coordination duties is extended such that reciprocity and solidarity in welfare benefits applies also to non-economically active citizens moving between welfare systems. However, the development of the notion of ‘solidarity’, for instance in the EU Charter of Fundamental Rights, has proved insufficient to further extend the development of social citizenship in such a way as to benefit legally resident third-country nationals. Indeed, the extent to which such solidarity is in fact available to all EU citizens resident in another Member State is now thrown into doubt. EU citizenship had been deemed to be of ‘fundamental status’ such that EU citizens lawfully resident in another Member State were entitled to social advantages (including welfare benefits) on the same terms as nationals.Footnote ⁶³ However, in a line of case law over the past decade, the Court of Justice of the European Union has undertaken what Stefano Giubboni describes as ‘a spectacular retreat’ from the (admittedly weak) rhetoric of transnational solidarity which its earlier case law had extended to non-economically active EU citizens.Footnote ⁶⁴ Thus, permitting exceptions and qualifications contained in secondary EU legislation (such as the Citizens’ Rights Directive 2004/38, OJ 2004 L 158, pp. 77–123) to dilute the ‘fundamental’ status of citizenship and EU citizens’ rights to equal treatment contained in primary EU law,Footnote ⁶⁵ negates any aspiration towards ‘social Europe’: a social citizenship which excludes non-economically active citizens will also determinedly exclude third-country nationals.

Here is where we have a parallel effect between EU level and Member State level. Racialized workers and colonial subjects, even when no longer in the geographical periphery but having migrated to the global North and present in the geographic core, are excluded from national social citizenship, due to their location in the economic periphery of labour markets. As Karim Fertikh observes, this dual standard and racialized ‘hierarchy of belonging’, was a common template across many EEC states.Footnote ⁶⁶ So in the same way that these workers are excluded from national institutions of social citizenship, ‘third country nationals’ as they are referred to in the context of the EU single market, are similarly excluded from ‘social Europe’. The hollowing out of ‘social Europe’ or social citizenship for EU nationals evidenced by the recent case law of the Court of Justice is in line with what Giubboni characterizes as the ‘neo-nationalistic and social-chauvinistic moods prevailing in Europe’,Footnote ⁶⁷ which no longer accepts the value of ‘a certain degree of financial solidarity’ between EU Member States.Footnote ⁶⁸ In similar vein, despite the funding of these national and EU redistributive social systems being premised on colonial extraction and the labour power from colonial states, financial or transnational solidarity beyond the territory of the EU is inconceivable.Footnote ⁶⁹

6.5 Social Regionalism in the EU and the AU: The EU as a Neocolonial Project

One of the key projects with which labour and social law is concerned relates to constraining private market power, and a concern about the regulatory means by which the market can be governed. Historically, labour law, along with much economic law, has been a domestic project, ‘defined on the basis of a geographic territory or a synthetic community’.Footnote ⁷⁰ Labour and social law scholarship has traditionally focused on the role of the state and its capacity, or otherwise, to regulate a territorially bounded market to socialize economic risk and uncertainty. But ‘labour’ is now provided, undertaken or commodified under conditions of trade liberalization; capital and the sphere of economic interaction are increasingly de-territorialized. Such increased cross-border economic activity places major demands on the ability of states to maintain (or instigate) regulatory control of economic activities within their borders. Given increased liberalization of trade and capital, one may ask, with Alain Supiot, whether the social state is still in a position to ‘prohibit the use of open borders to escape the duties of solidarity inherent in the recognition of economic and social rights’.Footnote ⁷¹ We may also need to ask whether, from the perspective of labour and social regulation, economic activity – in particular that which crosses national borders – can any longer be contained within or constrained by state regulation, and instead shift the focus to the attendant role of regulation on the regional or transnational plane.

In that light, and to return to the above discussion of economic sociology and ‘embedded liberalism’, Björn Hettne’s question becomes pertinent: ‘Is regionalisation an integral part of globalisation, or is it a political reaction against that process?’Footnote ⁷² In fact, as Hettne also concurs and as we have seen in the case of the EU, it can be both. For industrialized economies of the global North, including those in Europe, much of the protection of society from the market which Polanyi refers to as the countermovement or double movement,Footnote ⁷³ occurred through the auspices of the social state. While regionalism and market liberalization do indeed undermine national regulatory autonomy over labour or social welfare law, the embedded liberal compromise, as the European integration project has exemplified, has in fact embedded the internal market within national social policy. Such embedding has been predicated on the ability of these industrialized nations to alleviate any adverse impact of market integration through national systems of employment protection and social welfare, and to fund social policy interventions, but shored up by the development of forms of social citizenship at EU level.Footnote ⁷⁴

In exploring the scope for regional integration with a social dimension (social regionalism) in the EU and in the AU to re-embed the market or constrain the negative consequences of trade liberalization, one needs to trace the separate trajectories of these two regionalism projects; but also to recognize points of overlap, namely where one regionalism project (the EU) may constrain the policy space available to the other (the AU) to develop its own version of social regionalism. Nancy Fraser’s blunt observation that ‘the project of social protection can no longer be envisioned in the national frame’,Footnote ⁷⁵ along with Supiot’s question whether the social state is ‘still’ able to protect economic and social rights, presupposes prior state capacity albeit now undermined by globalization. Yet developing economies of the global South, former EU colonies, never enjoyed protective capacities equal to those of ‘the core’ – thanks to ‘long histories of colonial subjection, as well as to the continuation, after independence, of imperialist predation by other means’.Footnote ⁷⁶

To return to the observation in the introduction, what does it mean to say that EU colonialism continues to shape EU–AU relations, and to determine the conditions of possibility for the evolution of a social dimension for the AU’s own market integration project? What does it mean to take Polanyi to both Brussels and Addis Ababa, the homes of the EU Commission and AU Commission respectively? As discussed above, social regionalism in the EU context can be understood to entail a countermovement in the Polanyian sense – a regulatory response to protect vulnerable regions, sectors and workers from the impact of markets and trade liberalization, but writ large, beyond the single nation state. This involves integration which is both solidaristic and redistributive, conceiving of the adjustment costs of trade as more than a matter for domestic policy. But what policy space is there for a similar intervention or social regionalism within sub-Saharan Africa given that according to Nkrumah, the Treaty of Rome and the creation of the EEC represented ‘the advent of neocolonialism in Africa’Footnote ⁷⁷ or ‘collective colonialism’.Footnote ⁷⁸

The continent’s policy-makers, political elites and institutions (such as the AU Commission), drawing on and complementing the economic analyses of organizations such as the United Nations Economic Commission for Africa (UNECA), have come to a consensus around the need to pursue continent-wide trade liberalization in order to confer on African economies the economic power to engage meaningfully in global trade. But was this acceptance of the existing ‘rules of the game’ of the global economic order always the case? Was there scope or policy space for the form of regionalism which emerged from the Organisation of African Unity and the common project of decolonization to evolve into a form of African (social) regionalism which could serve as a countervailing force to neo-liberal global trade? The dominant model of regional integration on the continent today is one aimed at trade liberalization, integrating African states into the world economy and reducing the role of the state in the economy. This is most clearly exemplified through the establishment of the African Continental Free Trade Area (AfCFTA) which came into force in 2021,Footnote ⁷⁹ and has been described as a ‘game changer’ for stimulating intra-African trade,Footnote ⁸⁰ as well as enhancing integration of the region into the global economy.Footnote ⁸¹ To what extent is this regionalization process mirroring the market fundamentalism of existing global trade rules, or able to act as a buffer against them? I am interested in contrasting the market orientation acceptance of the neo-liberal paradigm of the current continental African regionalization project, with the earlier emphasis on the developmental state and state-led industrialization as an alternative economic strategy.

Early conceptions of regionalism on the continent of Africa were, in common with regionalist ideology in Latin America, Asia and among Arab countries, closely founded on aspirations for political unity and a common project of decolonization.Footnote ⁸² In postcolonial Africa, regionalism and integration arose alongside the emancipatory movement against racial (and economic) domination and the desire to integrate as a means to counter neocolonial legacies.Footnote ⁸³ However, the radical version of pan-Africanism, as espoused by Nkrumah and other post-independence leaders in the early 1960s urging political integration and supranationalism as a prerequisite for economic integration, gave way to a more moderate version, seeking to strengthen respective states while promoting subregional communities.Footnote ⁸⁴ This choice or tension between different forms of pan-Africanism and models of integration came to the fore in the immediate post-independence period, at the 1963 Addis Ababa summit which led to the formation of the Organisation of African Unity (OAU),Footnote ⁸⁵ and again at the formation of the AU in 2000. As Daniel Bach argues, the OAU, the precursor to the AU, took its inspiration from the Organisation of American States. As such, the emphasis was on providing a multilateral forum. Thus the radical pan-African ideals of sovereignty pooling or supranationalism were sidelined in favour of ‘more immediate concerns related to sovereignty enhancement, non-interference in domestic affairs and mutual respect for colonial boundaries’,Footnote ⁸⁶ and also in favour of further strengthening regional economic communities (RECs) before later continental integration.Footnote ⁸⁷

The Constitutive Act of the African Union, adopted in July 2000, reflects the complexity of combining or balancing these aspirations towards both (national) independence and (regional) integration. Article 3, which articulates the objectives of the new Union, aims to ‘defend the sovereignty, territorial integrity and independence of its Member States’; to ‘accelerate the political and socio-economic integration of the continent’; and also to ‘coordinate and harmonize the policies between the existing and future Regional Economic Communities’.Footnote ⁸⁸ In contrast to the Preamble to the Treaty of Rome, which expresses a determination ‘to lay the foundations of an ever closer union among the peoples of Europe’ and then envisages that unity primarily in economic terms (referring to improvement of the living and working conditions, abolition of restrictions on international trade and a common commercial policy), the central inspirations underpinning the Preamble to the AU Constitutive Act are the ideals of pan-Africanism – unity, solidarity, but also the ‘heroic struggles waged by our peoples and our countries for political independence, human dignity and economic emancipation’. The model of integration ultimately adopted can be understood as a compromise ‘between partisans of a federal union (endowed with supranational competences) and those who resisted this ambitious vision and did not want to give up their national sovereignty’.Footnote ⁸⁹

I now return to the contention that EU colonialism continues to shape EU–AU relations, and to determine the conditions of possibility for the evolution of a social dimension for the AU’s own market integration project. Against the backdrop of sometimes unpredictable geopolitical shifts which have affected global trade and politics,Footnote ⁹⁰ AU–EU relations are described in terms of partnership, but not one between equals,Footnote ⁹¹ given the process of ‘unequal exchange’ which continues to bedevil postcolonial trade. There are two components to this characterization of colonial economy, developed by historians and economists associated with dependency theory and world-system theory.Footnote ⁹² First, that the wealth of high-income nations depends, on a vast scale, on processes of appropriation of natural resources and labour from the rest of the world, in particular from the global South during the colonial period.Footnote ⁹³ More specifically, that ‘rich countries and monopolistic corporations leverage their geopolitical and commercial dominance in the world economy to depress or cheapen the prices of resources and labour in the global South, both at the level of whole national economies as well as within global commodity chains’.Footnote ⁹⁴ The rules of global trade, and hence the ability to embed the market in the social, are thus weighted against formerly colonized states. Further, in respect of the scope to engage in ‘social regionalism’, this drain from the global South arguably remains a significant feature of the world economy and sustains high levels of income, redistribution and material consumption in ‘advanced economies’.Footnote ⁹⁵

Second, that contemporary trade law, trade and development policies of international financial institutions and of global North governments have entrenched this unequal exchange. As summarized by Hickel and his co-authors, structural adjustment programmes imposed on the South by the International Monetary Fund and World Bank, bilateral free trade agreements and the rules of a World Trade Organization (WTO) dominated by high-income nations have forced global South governments to remove tariffs, subsidies and other protections for infant industries, to cut public sector wages and employment, while rolling back labour rights and curtailing trade unions.Footnote ⁹⁶

With regard to the EU–AU nexus, I wish to focus on the second, institutional part of the argument as to unequal exchange. In her 2023 State of the Union Speech, President of the EU Commission Ursula von der Leyen indicated that she and High Representative Josep Borrell would propose a ‘new approach’ to Africa during the upcoming EU–AU summit.Footnote ⁹⁷ However, the current EU external relations and trade law framework reveals continuities in terms of ‘unequal exchange’ which are unlikely to be modified by any ‘new approach’. The current legal framework governing EU–Africa (i.e. broader than AU) relations is the Samoa Agreement with the Organisation of African, Caribbean and Pacific States (OACPS), signed in November 2023.Footnote ⁹⁸ This ‘post-Cotonou’ agreement evolved out of the Cotonou Partnership Agreement (CPA), signed in 1990 between the then European Community and African, Caribbean and Pacific (ACP) states, which had itself replaced the earlier Lomé Conventions, while retaining the core principle of non-reciprocal trade preferences first enshrined in the Lomé Convention of 1975.Footnote ⁹⁹ As with the Lomé Conventions, the CPA was granted exemption from the most-favoured-nation obligation in Article I of the General Agreement on Tariffs and Trade, in order to permit preferential treatment of ACP products within the narrow waiver allowed by the WTO.Footnote ¹⁰⁰ Since the expiry of the WTO waiver in December 2007, trade relations between the ACP countries and the EU have been governed by a variety of legal instruments, including economic partnership agreements (EPAs) and the EU Generalised Scheme of Preferences, ‘replacing the more or less unified system of unilateral preferences under the Lomé Agreements with an array of tools’, fragmenting the ACP bloc into several subregional pieces for trade purposes.Footnote ¹⁰¹ The post-Cotonou partnership will arguably take this fragmentation further. Unlike the Lomé and Cotonou Agreements, which applied equally to all countries in the ACP regions without distinction, the new Samoa Agreement is made up of two parts: a General Part that applies to all OACPS countries (an umbrella agreement) and three region-specific protocols that apply only to the respective regions (regional protocols) – for instance, the Africa Regional Protocol.

While ostensibly committed to supporting intra-African trade, such as to generate tariff incomes of the sort to enable redistribution which could sustain social regionalism, the post-Cotonou partnership in practice operates to undermine African integration and intra-African trade. For instance: although the umbrella agreement commits signatory states to ‘intensifying regional integration efforts and processes within Africa, the Caribbean, and the Pacific and further encouraging intra-ACP regional trade’, and the Africa Regional Protocol commits the parties to ‘support regional and continental integration in Africa’ (Article 3 of the Africa Regional Protocol), including the AfCFTA, these efforts are undermined by the fact the post-Cotonou partnership also requires that ‘trade cooperation shall primarily build on existing preferential trade arrangements and Economic Partnership Agreements (EPAs)’.Footnote ¹⁰² Prioritizing preferential trade agreements with the EU militates against the ability to deepen RECs and continent-wide integration – and undercuts the potential of the much-lauded AfCFTA to increase the value of intra-African trade. As Melaku Geboye Desta shows, EPAs have undermined some of the most promising regional integration projects in Africa, such as the Economic Community of West African States (ECOWAS, one of the regional economic communities on whose foundations the AfCFTA is to be built), given that countries such as Ghana and Côte d’Ivoire have had to conclude individual interim EPAs with the EU in order to preserve pre-existing market access – that is duty-free and quota-free access to the EU.Footnote ¹⁰³ The estimates put forward by economists such as those at UNECA, that a single continental market would increase the value of intra-African trade by between 15 per cent (50 billion dollars) and 25 per cent (70 billion dollars) by 2040, due to the elimination of 90 per cent of tariffs on goods and the reduction of trade costs will not be realizable either for the continent-wide AfCFTA or for the RECs.Footnote ¹⁰⁴ The adoption of bilateral special regimes by states which are members of the AU and also members of one of the AU’s RECs, in order to continue preferential trade with the EU, is incompatible with any common external tariff adopted by a REC such as ECOWAS.Footnote ¹⁰⁵ The ability of EU goods to evade the ECOWAS common external tariff will lead to a loss of customs duties for ECOWAS, and a reduction in revenues for all ECOWAS states,Footnote ¹⁰⁶ an outcome which is likely to be replicated on the larger, continental, stage of the AU’s attempts at market integration. The EU’s repeated assertion that EPAs and free trade agreements with the EU ‘should be exploited to the greatest extent, as building blocks to the benefit of the African Continental Free Trade Area’,Footnote ¹⁰⁷ can only operate to undermine the AU’s goal for AfCFTA to create a single market for goods and services, such a single market being central to the continental market integration agenda but also an essential prerequisite for the continent’s development and social agenda.

6.6 Conclusion

This chapter has sought to highlight an absence in EU law scholarship, namely an analysis of the role of colonialism, race or racial capitalism in the process of EU integration. Addressing that lacuna requires us to develop an alternative analytical framework with which to understand the law in regionalism and market integration projects: one which recognizes colonialism as central to the historic construction of the welfare state in Europe, and draws attention to the transfers between South and North which made possible the ‘embedded liberalism’ of the EU social market project.

The value of the region is that in the case of the EU it has been able to serve as a complement and support to the social state weakened by the open borders of trade liberalization. However, the temporal, geographic and economic preconditions which enabled embedded liberalism or social regionalism in the EU to flourish do not apply in the case of the AU. First, the contemporary global trading order is less sympathetic to government intervention: the era of embedded liberalism has given way to one marked by disciplinary neo-liberalism. Second, the individual Member States themselves are less able to provide social stabilizers: developing states, and the regions they create, lack the policy space, institutional or economic capacity to moderate the harmful domestic effects of market exposure. Finally, in keeping with the main theme of this chapter and this collection, one needs to be attentive to the historic and contemporary relationship between the two regionalism projects. To return to Nkrumah’s observation on the Treaty of Rome, embedded liberalism in one region has consequences for the policy space available for the development of a social dimension elsewhere. The two regions are not only trading partners, but also share a colonial history which has an ongoing impact, with the embedded liberalism which underpinned the redistributive capacities of individual states of the North and the redistributive capacities of the EU integration project in large part predicated on the transfer of value from the global South, and the EU’s economic model potentially destabilizing the development of regional integration and redistributive social institutions in its developing-country trading partners.