1. The founding myth of EU law

Empire and decolonisation are conspicuous mostly for their absence in the academic study as well as the public debate over the origins and nature of European integration and European Union (EU) law. The end of empire and decolonisation are among the most significant legal and political developments of the twentieth century, yet lawyers, political scientists as well as historians who study EU law and European integration have paid surprisingly little attention to the question of the end of empire and the broader transformation of the European states that followed.Footnote ¹

For example, one of the most prominent political scientists writing on European integration, Andrew Moravcsik, describes empire and decolonisation – almost in passing together with other geopolitical interests – as of secondary relevance for the study of European integration.Footnote ² The ‘choice for Europe’, Moravcsik maintains, was about ‘commercial interest’ rather than ‘glory’.Footnote ³ In this way, Moravcsik (indirectly) perpetuates the old and widely discredited idea that somehow empire was not about the ‘economy’ or ‘commercial interest’.Footnote ⁴ As has been demonstrated by countless historians and social scientists, a central motivation fuelling imperialism was access to larger internal markets,Footnote ⁵ natural resources, cheap/slave labour and soldiers,Footnote ⁶ and a safety-valve for European overpopulation and land-hunger.Footnote ⁷ As Eric Hobsbawm put it: ‘Whatever the official rhetoric, the function of colonies and informal dependencies was to complement metropolitan economies and not to compete with them’.Footnote ⁸

Most scholarship on European integration, however, does not even consider empire. Instead, the academic study of European integration and EU law, as well as the official narrative put forward by EU institutions, overwhelmingly starts with a mythical story of European history that goes something like this:Footnote ⁹ for centuries, the European nation-states were in more or less constant war with each other. This culminated in the greatest nationalist war of all times where atrocities yet unheard of in history were committed. After the war, this led the European nation-states to come together in one of the greatest peace projects of all time, namely the project of European integration. Anew and unique legal and political community was created that, over the years, emerged as a rival centre of governmental authority to the nation-states.

At this point, the story diverges in two directions, depending on whether scholars give priority to the European institutions or to the Member States, which more often than not are seen as competitors in a zero-sum game. This leads respectively to the theories, on the one hand, of functionalism, neofunctionalism, cosmopolitanism and constitutionalism beyond the state, and, on the other hand, theories of (liberal) intergovernmentalism, realism and the EU as administrative or international law.Footnote ¹⁰ Whereas the former tend to look on the EU with admiration and excitement as a unique project that has finally managed to transcend the horrors of the nation-state, the latter for the most part maintain that, notwithstanding the significance of the project of European integration and globalisation more broadly, the nation-state remains the most important political unit.

There are, therefore, significant differences between these two clusters of theories and narratives, most importantly whether the nation-state is ‘withering away’ (and whether that is something to be celebrated or not). Nevertheless, these theories all share the same underlying account of European history centred on the nation-state as the dominant, if not the only, form of political association. We must reject this story; not least because it ignores the significance of empire in European history.

The argument set out in this article is that European integration and EU law must be understood against the backdrop of the decline of the European empires and the transformation of the European public law order that underpinned them: Droit Public de l’Europe or Jus Publicum Europaeum. With the demise of the public law order of the European empires, European integration emerged as an integral part of a new European public law order in tandem with decolonisation. The post-World War II European public law order contained a new vision for domestic public law based on human dignity; a new form of European interstate relations based on the limitation of sovereignty; as well as a new relationship between Europe and the (former) colonial world importantly through the realisation of the project of ‘Eurafrica’. In this way, European integration emerged as part of the solution to the problem of ‘Europe’ in a world where Europe had been irrevocably deprived of its status as the only place of ‘civilisation’, and hence, sovereignty. European public law, both domestic constitutional law and the international law regulating interstate conduct between European states, has always been shaped by the ‘colonial encounter’ with societies outside Europe. If we are to understand the nature and significance of European integration and EU law, we must start thinking about the legacy of empire in the history of European public law.

2. The legacy of empire

The mainstream narrative about the origins of European integration takes its point of departure in a flawed, or at least incomplete, diagnosis of World War II as a purely ‘nationalist’ war. By focusing on the ‘excesses’ of (German) nationalism, it is obscured that the territorial expansion of Nazi Germany into Eastern Europe in a quest for Lebensraum was an imperialist project and the techniques employed were honed from colonial practices previously employed outside Europe.Footnote ¹¹ The Third Reich was arguably the last ‘grand’ attempt to preserve the old world of European empires that sought to substitute oversees colonies by imperial expansion within Europe itself and thereby ‘make the great spaces of Eastern Europe into Germany’s equivalent of the [British] Raj’.Footnote ¹²

The misrepresentation of World War Two is symptomatic of a broader tendency to ignore the legacy of empire and focus exclusively on the nation-state as the relevant unit of analysis. Notwithstanding the turn towards transnational history starting in the 1990s, the dominant European historical narratives, at least outside history departments, remain anchored in national history (eg, French, German and British history).Footnote ¹³ Yet from a historical perspective, the dominant form of political association is arguably not the nation-state. For most of political modernity, the European states were, as a rule, empires.Footnote ¹⁴ The great land empires that collapsed after World War Iwere unions of several relatively autonomous juridical, political and territorial entities that ruled over several ‘peoples’ speaking multiple languages and belonging to multiple religious denominations.Footnote ¹⁵ Within the maritime empires that held on a few decades longer, the European metropoles were for the most part dwarfed by the number and size of their oversees subjects and territories.Footnote ¹⁶ The metropolitan European ‘people’ was generally a minority compared to the colonial population also governed, directly or indirectly, by the European states, albeit by different laws and with fewer rights.Footnote ¹⁷ Until the end of the ‘age of empire’ with World War I, European nation-states – one people, one territory, one ruling authority – were the exception rather than the rule.Footnote ¹⁸ It was only after the ‘Great War’ that proper nation-states were created on a large scale in Eastern Europe in the lands of the now former Habsburg Empire, Ottoman Empire and German Empire. These new nation-states, however, only survived for roughly two decades before they were annexed during the imperial conquests of Nazi Germany and the Soviet Union.Footnote ¹⁹ With the exception of Austria, all the Central and Eastern European nation-states that had been created after World War Idid not emerge as ‘sovereign’ states after World War II but were rather under the more or less direct rule of the Soviet Union.

In contrast to nation-states, empires are composite legal and political entities that combine or transcend aspects of domestic and international law and politics.Footnote ²⁰ What this means is that composite legal and political entities are the historical default, not unitary, sovereign nation-states. If we take into account that political modernity has been overwhelmingly shaped by the political form of the empire, the notion that Europe is today governed by a legal and political system that does not conform to the model of the sovereign nation-state already appears less unique. If we accept that composite legal and political entities are not exceptional, we are forced to conclude that if the EU is unique, it is not because it is a composite legal and political entity.Footnote ²¹

However, within the study of European integration and EU law, it is generally maintained that the EU is unique exactly because its constitutional nature calls into question the principles of international law.Footnote ²² Within the international legal community, states are sovereign and equal. By introducing the principles of supremacy and direct effect, the argument goes, EU law, and especially the case law of the European Court of Justice (ECJ), has introduced a legal revolution that has taken EU law beyond the realm of ‘normal’ international law.Footnote ²³ The EU rather constitutes a new legal order that eludes traditional concepts of international law. The EU has led to an erosion of sovereignty that scholars look on either with grim concern as an undemocratic force or else as a promise for a new form of cosmopolitanism that ought to be replicated all over the world.Footnote ²⁴

There is no doubt that EU law is distinct from the general workings of international law and arguing otherwise remains a minority position within EU law scholarship for good reasons.Footnote ²⁵ Nevertheless, the comparison made in the literature tends to lack historical depth, and for that reason it misses the real significance of EU law. This is because the narrative of the EU’s sui generis nature through the comparison with international law tends to ignore the historical development of the European public law order, including ‘European’ international law, as well as the role played by European empires within it. The ‘ordinary’ international legal order that EU law is compared to tends to be a universal international legal order where political communities, as a rule, are recognised as sovereign states. In today’s world, where more or less the entire globe is parcelled into nation-states, the EU appears as an exception and a mystery; somehow ‘more’ than an international organisation yet ‘less’ than a new sovereign state.

Yet this global legal order is, in historical terms, recent. For most of modernity, European jurists would have found it absurd to think of political communities outside Europe in terms of sovereignty.Footnote ²⁶ Sovereignty only pertained to the world of ‘civilised’, that is, ‘European’ states. This view continued in some form until the 1960s,Footnote ²⁷ when non-Western political communities at large were included in the family of sovereign nations as part of decolonisation.Footnote ²⁸ The ‘universal’ international law that the EU is contrasted with, where the default option is that political communities on a global scale are recognised as sovereign states, only came into existence as a consequence of the collapse of the global legal order of European empires. Moreover, as Jane Burbank and Frederick Cooper have demonstrated, the adoption of the nation-state as the alternative to empire was by no means a foregone conclusion.Footnote ²⁹ Within the academic study of EU law, however, this is widely ignored or forgotten, and the EU is compared to a world where the ‘normal’ situation is assumed to be sovereign nation-states that precede international law.

3. Empire and European international law

International law is in its origins Eurocentric. For centuries, ‘European’ international law was a constitutive part of the public law order of European empires: Droit Public de l’Europe or Jus Publicum Europaeum.Footnote ³⁰ Described as the ‘external’ aspects of the European public law order, European international law regulated the relationship between ‘civilised’ European states.Footnote ³¹ This public law order of European empires, founded on land appropriation in the new world and consolidated and formalised in the nineteenth century, was one of the casualties of World War II.Footnote ³² The foundations of Droit Public de l’Europe, however, were already undermined with World War Ithat destroyed the European land empires, exposed the weakness of the British Empire, while revealing the strength of the United States.Footnote ³³ Nevertheless, the old European international legal order was not replaced by a new international legal order in the interwar period.Footnote ³⁴ Until the demise of the European maritime empires, European international law regulated the relationships between the European states, as well as their relationships with the ‘uncivilised’ world outside Europe.Footnote ³⁵

Within the legal order of Droit Public de l’Europe, ‘Europe’ had a special status as the community of civilised, and hence, sovereign and equal nations.Footnote ³⁶ Only the civilised nations in Europe, and later former white settler colonies ruled by people of European descent, were included in the community of ‘civilised nations’ that could be considered sovereign.Footnote ³⁷ The ‘civilised’ world ordained with sovereignty was qualitatively distinct from the ‘uncivilised’ world outside Europe where political communities, at best, could be recognised as partly or half sovereign.Footnote ³⁸ This legal order was based on a fundamental separation between the principles that governed and structured the relationship between the European metropoles as sovereign and equal states, and the laws and principles that regulated the ‘colonial encounter’ with the ‘uncivilised world’ outside Europe.Footnote ³⁹ The fundamental spatial distinction underlying Droit Public de l’Europe was between, on the one hand, the lawful order of Europe that ‘bracketed war’ among European states by subjecting war to legal rule and, on the other hand, the relative lawlessness of the ‘free and empty spaces’ in the New World, where land appropriation knew no bounds and only the law of the strongest prevailed.Footnote ⁴⁰ The New World was an area ‘where force could be used freely and ruthlessly’.Footnote ⁴¹

The world of Droit Public de l’Europe, therefore, was global but not universal. On a global scale, two different sets of rules applied: those regulating conduct among ‘civilised’ states in Europe, and those regulating conduct in the ‘uncivilised’ world.Footnote ⁴² Since the non-European world in the eyes of Europeans did not live up to the European standard of ‘civilisation’ they did not exert sovereign authority over their lands. For that reason, in the eyes of Europeans, and European jurists,Footnote ⁴³ the world beyond Europe could be legally and legitimately subjected to the imperial control of the sovereign European states by a variety of different means ranging from conquest to cession.Footnote ⁴⁴ Even in cases of cession, however, non-Europeans were at best regarded as having private law ownership of land; never sovereign control over territory.Footnote ⁴⁵ The colonial title to territory was always seen as original.Footnote ⁴⁶ Whether the non-European territory was inhabited or not, it was in the eyes of Europeans a ‘free space’ that was ‘open to European occupation and expansion’.Footnote ⁴⁷ With the shift from informal to formal empire between the last two decades of the nineteenth century and World War One, the entire globe was partitioned into territories under the formal rule of a small number of, predominantly, European states.Footnote ⁴⁸

Within positivist traditions, sovereignty is in general seen as the foundational concept of international law. As demonstrated by scholars such as Antony Anghie and Martti Koskenniemi but before them also Carl Schmitt, such an analysis is flawed since few political communities beyond Europe were recognised as sovereign states under ‘European’ international law.Footnote ⁴⁹ Within ‘European’ international law, sovereignty was reserved for the society of ‘civilised nations’ and law only prevailed among its members.Footnote ⁵⁰ ‘Civilisation’ and ‘society’, therefore must be included as co-constitutive concepts of ‘European’ international law because they determined which political communities were to be included as sovereign states and which communities were ‘outside’ the world of European international law.Footnote ⁵¹ Droit Public de l’Europe is therefore not merely constituted on the basis of sovereign equality but also on the basis of the inequality between ‘civilised’ and ‘uncivilised’ peoples; the difference between Europe and its ‘other’.Footnote ⁵² The European princes could recognise each other as equals exactly because they saw themselves collectively as distinct from and superior to non-Europeans.

In this way, ‘Europe’ had a special legal and political status as distinct from the rest of the world within Droit Public de l’Europe: ‘Even in the absence of a common sovereign, Europe was a political society and international law an inextricable part of its organization.’Footnote ⁵³ What the Europeans shared with each other, which in their own eyes distinguished them from everyone else and made them capable of ‘discovering’ and ‘civilising’ the rest of the world, was a distinctive kind of consciousness or conscience.Footnote ⁵⁴ According to Koskenniemi:

The interstate character of ‘European’ international law can be understood only if the spatial order that underpinned it is acknowledged. The Old World of Europe, where states recognised each other as sovereign equals, relied on its differentiation from the New World where, for most of political modernity, no communities were recognised as sovereign and where the law of ‘civilisation’ did not apply.Footnote ⁵⁶ It was this fundamental difference set out by a Eurocentric spatial global order that gave meaning to Droit Public de l’Europe. Footnote ⁵⁷ Following Schmitt, it was land appropriation of the New World that ‘made possible a new European international law among states: an interstate structure’.Footnote ⁵⁸ The Eurocentric spatial order of Jus Publicum Europaeum, in Schmitt’s view, started to decline towards the end of the nineteenth century when the fundamental distinction between European and non-European soil was abandoned.Footnote ⁵⁹ Empire, therefore, is not incidental to ‘European’ international law; the law between European sovereign states. It is a constitutive feature.

4. The collapse of Droit Public de l’Europe

During the interwar period, European colonial rule was starting to fray at the edges with growing demands for self-determination and constitutional reform in places as different as Ireland, India and across the African colonies.Footnote ⁶⁰ The French and the British had relied heavily on their empires for the war effort, and as the colonial troops returned to the colonies from the battle for the empires’ mother countries, they could not understand why they should be denied the freedoms they had fought to secure for people in Europe.Footnote ⁶¹ Yet while World War One and the interwar period exposed the weakness and instability of the old world of European empires, they did not lead to the creation of a new stable legal, political and economic order that could replace it.Footnote ⁶² On the contrary, the interwar period saw a new level of chaos in a world where empires and proper nation-states existed alongside one another for the first time on a grand scale.

The age of extremes spelled the economic, political and constitutional collapse of the European states, which left them incapable of securing their most basic aims of territorial defence, repression of civil war and the aversion of hunger. The most prominent example is the Weimar Republic, which never managed to realise a stable form of government. This resulted in the widespread use of emergency decrees that ultimately brought the Nazis to power with the project of turning Eastern Europe into the colonial territory of the Third Reich.Footnote ⁶³ Without overseas colonies to sustain the state, Nazi Germany brought the practice of colonial exploitation home to ‘Europe’ in the quest for raw materials, slave labour and Lebensraum.Footnote ⁶⁴ The racial violence of colonialism, including slavery and genocide, that previously had taken place territorially outside the ‘civilised’ world in the colonies was thus for the first time in history forced upon Europeans by Europeans on European soil.Footnote ⁶⁵ In this way, the foundational distinction of ‘European’ international law between what passed as legitimate action in the ‘civilised world’ and what were legitimate acts in the ‘uncivilised world’ outside Europe was eradicated.

With the conclusion of World War II and in the following decades, it became increasingly clear that ‘Europe’ was no longer the centre of gravity for the world order; nor was it likely to become so again. Not only had the imperial control of the colonies been lost or weakened, but the constitutional regimes in Europe, in the imperial metropoles, had largely collapsed. After the war, Europe was a region of more or less failed states in the outskirts of the two ‘super-powers’ of the new world order, the Soviet Union and the United States.Footnote ⁶⁶ With a few significant exceptions – the United Kingdom, Switzerland and to some extent the Scandinavian states – the European constitutional regimes as well as the faith in the international order that underpinned them had been destroyed.Footnote ⁶⁷

World War II led to the ‘fall’ of ‘European’ international law and the emergence of a new global order, a ‘universal’ international law, with a number of new significant international institutions such as the United Nations (UN), the General Agreement on Tariffs and Trade, the World Bank and the International Monetary Fund.Footnote ⁶⁸ An important aim of these institutions was to facilitate the transformation of colonial territories into sovereign states as well as to control and manage the new ‘Third World’.Footnote ⁶⁹ The members of this new ‘community of nations’ were no longer separated into ‘civilised’ and ‘uncivilised’ nations but rather ‘developed’ and ‘underdeveloped’ countries as the old ‘civilising mission’ was replaced by a project of ‘modernisation’.Footnote ⁷⁰

5. Decolonisation and the transformation of Europe

With the end of the ‘age of extremes’, Droit Public de l’Europe was finally drawing to a close, even though decolonisation was yet to happen in earnest. The German and Italian projects of fascist imperialism had been quashed and it became clear that the foundations for the new world order would not be built on the old world of European empires. Nevertheless, for the first two decades after World War Two, the European metropoles attempted desperately to cling on to their imperial possessions by relying on a mixed strategy of imperial constitutional reform and violent repression.Footnote ⁷¹ The most ambitious constitutional reforms projected a vision of the transformation of the British, French and Dutch empires into Federal Unions or Commonwealths based on the extension of imperial citizenship and other constitutional rights.Footnote ⁷² However, when these projects failed or turned out to be stillborn, the European states attempted, and failed, to hold on to empire through violent coercion, for example during the Indochina War/Anti-French Resistance War (1946–54); the Indonesian War of Independence (1945–49); the Malayan Emergency/the Anti-British National Liberation War (1948–60); the Mau Mau Uprising/the Kenya Emergency (1952–60); the Algerian War of Independence (1954–62); and the 1956 Suez crisis.Footnote ⁷³

Decolonisation led to a fundamental transformation of the former colonies, now termed the ‘developing world’.Footnote ⁷⁴ Over the past few decades, post-colonial scholarship in international law has examined the role played by international law in facilitating and reforming Western rule in the colonial world, as well as the Global South more broadly, both before and after decolonisation.Footnote ⁷⁵ However, empire was not merely an appendix that could be removed without significantly transforming Europe and the former metropoles as well. The end of empire dealt a blow to the legal, political, and economic foundations on which the European state system rested. This, however, remains under-researched; perhaps because the European strategy to deal publicly with the legacy of empire has, for the most part, been to ‘forget’ that it ever existed or to treat it as something that happened somewhere else, ‘overseas’.

A strategy of ‘forgetting’, however, could not provide a solution to the fundamental problem of ‘Europe’ that was posed with increasing urgency during the interwar period and after World War II. What were the implications for Europe when ‘non-European states and nations from all sides now took their place in the family or house of European nations and states?’Footnote ⁷⁶ With the reconfiguration of the global order after the decline and eventual collapse of the global order anchored in European imperialism, what would happen to ‘Europe’ and the imperial metropoles? After the ‘humiliation’ of decolonisation when Europe lost its treasured symbols of economic, political, and moral superiority, how would ‘Europe’ as a political existence and identity survive?Footnote ⁷⁷

After World War II, the spatial order and ideological orientation of European international law had been destroyed. In the new international legal order that emerged, ‘Europe’ did not have a privileged status in terms of European territory or in terms of European ‘consciousness’ or ‘civilisation’. Many intellectuals at the time, therefore, talked about a crisis of European spirit or consciousness.Footnote ⁷⁸ Shortly after World War II, Europe – the centre of the old world order of Droit Public de l’Europe – was effectively partitioned into the two spheres of influence of the United States and the Soviet Union.Footnote ⁷⁹ For centuries, through formal and informal practices of empire and colonialism, Europeans had determined the political fate of peoples and communities in much, if not most, of the rest of the world. Yet with the end of World War II, Europeans were no longer in charge of Europe’s own destiny.Footnote ⁸⁰ To add insult to injury, both these new imperial superpowers laid claim to being the political forces that would finally complete the project of the enlightenment that the Europeans had failed at. In that sense, they both claimed to be a better, more superior version, of ‘Europe’.Footnote ⁸¹

European integration emerged as an integral part of the answer to this question by carving out a new space for Europe in the world in tandem with decolonisation. In this way, European integration is a significant part of a broader project of reconfiguring the global order after the decline and eventual collapse of European imperialism.Footnote ⁸² That being said, European integration is distinct from other legal and economic institutions set up to govern the post-World War II order such as the Bretton Woods institutions or the UN. The reason for that is not merely that European integration was never meant to be a ‘global’ institution in the sense that it only includes ‘European’ states. Equally important is the fact that European integration created a new legal and political order for Europe; the former world of the ‘civilised’ and hence sovereign states. In a global order no longer centred on European interests guised in the language of universalism, European integration emerged in order to secure European autonomy and European interests as distinct from the hegemonic forces of the new world order. In a new world, where sovereignty became for the first time in history the default for all politically organised communities rather than merely European states and where Europe was no longer the centre of gravity, European integration sought to secure a place for Europe, and European states, in the world.Footnote ⁸³

After World War II, a double movement took place in the European public law order. While the core principle of the old world of European international law, namely state sovereignty, was extended en masse to the ‘uncivilised’ (now ‘developing’) world, many of the former imperial metropoles turned away from this principle within Europe. Just when sovereignty was no longer something that predominantly belonged to European states, a new vision for the explicit limitation of sovereignty emerged in Europe.Footnote ⁸⁴ In this vision, European integration was from the very beginning conceived as an integral part of this new European public law order, which, in contrast to the old world of Droit Public de l’Europe, was founded on the view that sovereignty had to be restrained both within domestic public law and with regard to intra-European relations. Yet, in contrast to what is often maintained in the literature, the new European public law order was not merely a response to a fear of nationalism and fascism – or so it will be argued.

To anticipate the argument put forward in the remainder of the article, the turn away from sovereignty within Europe, both with regard to domestic public law as well as intra-European relations, was instrumental for the reassertion of European interests and European autonomy in the post-World War II global order where ‘Europe’ had lost its privileged place. The new European public law order sought to protect the autonomy and interests of Europe, not merely vis-à-vis the hegemonic superpowers of the post-World War II order but also vis-à-vis the ‘developing world’. Crucially, the new European public law order asserted European interests in the former colonies and laid the foundations that would allow Europe to continue its ‘civilising mission’ abroad.

6. A new European public law order

After World War II, Droit Public de l’Europe was slowly replaced with a new European public law order. As was the case for Droit Public de l’Europe, this legal order consisted of both ‘external’ aspects regulating the relationship between European states and ‘internal’ aspects regulating domestic public law. European law – European Community (EC)/EU law and European Convention on Human Rights (ECHR) law – as well as domestic constitutional law emerged as interdependent constitutive parts of this new European public law. This new public law order was founded on the wish to limit or even transcend the master principle of Droit Public de l’Europe, namely, sovereignty.Footnote ⁸⁵ In the words of the German Constitutional Court, the 1949 German Basic Law ‘abandons a self-serving and self-glorifying concept of sovereign statehood and returns to a view of the state authority of the individual state which regards sovereignty as “freedom that is organised by international law and committed to it”’.Footnote ⁸⁶

Within this new vision of European public law, the internal aspects of state sovereignty, above all else popular sovereignty, were seen as something dangerous, which, if not properly constrained, would lead to the destruction of the European constitutional regimes and possibly a new European civil war. The post-World War II European constitutional imagination was founded on a fundamental ‘fear of the people’.Footnote ⁸⁷ Legal and political stability in the form of ‘moderate government’ could only be achieved if the will of the people was constrained. At the pinnacle of the post-World War II European public law order is human dignity; not popular sovereignty.Footnote ⁸⁸ This signifies a shift from constituent power to constitutional rights.Footnote ⁸⁹

Within the new European public law order, the most lethal and dangerous enemy was understood to be internal to the old world of Droit Public de l’Europe, namely unconstrained sovereign power that allowed for the rise of a destructive and unbounded, ‘totalitarian’ order.Footnote ⁹⁰ In response to this internal threat to the stability of the European public law order, the new vision for constitutional government aimed to entrench a set of constitutional values against ‘ordinary politics’.Footnote ⁹¹ The new European public law order was meant to insulate certain aspects of political decision-making from ordinary politics in the hope that this would prevent the rise of totalitarianism.Footnote ⁹²

Constitutional courts were given a new prominent role as guardians of ‘constitutional values’.Footnote ⁹³ Other independent institutions and agencies, however, were also granted new powers in the hope that they could ensure stable and moderate government.Footnote ⁹⁴ In West Germany, for example, the central bank took on a powerful new role as the guardian of monetary stability. The government of money could not be left in the hands of elected politicians because this threatened to create hyperinflation, which again would lead to the erosion of the ethical foundations of society.Footnote ⁹⁵ In the new European public law order, the most important aspects of political life were no longer understood as being within the scope of what could legitimately be decided by the people or their representatives. They rather had to be entrenched constitutionally and monitored and defended by independent institutions such as constitutional courts, central banks and competition authorities.Footnote ⁹⁶

The new European public law order that emerged, however, not merely presented a new vision for domestic constitutional law but also a new way of regulating interstate relations within Europe. With the collapse of the European maritime empires, European international law came to an end, yet the new ‘universal’ international law was insufficient to stabilise interstate relations within Europe. This was the view not merely of the Americans but also the elites that came to dominate Western Europe and shape its post-World War II reconstruction, namely, the Christian Democratic parties.Footnote ⁹⁷ Although there were always tensions between the views of the Americans and the European Christian Democrats, the project of reconstituting Europe proceeded from an underlying consensus that Europe had to be reconstituted with new forms of interstate as well domestic constitutional relations.Footnote ⁹⁸ The alternative they reached for was not the new world order of universal international law but rather what had always been the viable alternative to empire, namely, federation.Footnote ⁹⁹ What the Americans as well as the Christian Democratic European elites could agree on was that European interstate relations could not be reconstituted on the old idea of the balance of power that had always relied on imperial expansion outside Europe.Footnote ¹⁰⁰ Rather, European interstate relations had to be governed by a new federal union. Europe needed to create ‘peace by federation’, in the words of Beveridge.Footnote ¹⁰¹

In the decades after World War II, ‘Europe’ became the core project that the transnational Christian Democratic elites rallied around.Footnote ¹⁰² Of crucial importance was the common European market, which provided the material conditions for rebuilding the European states, and thereby stabilising them.Footnote ¹⁰³ ‘Economic security’ was seen as essential not just in providing the material foundations of military defence against a communist invasion but perhaps more significantly to win ‘the battle for reconstruction’ against communism.Footnote ¹⁰⁴ To many people in post-war Western Europe, communism represented technological advancement and material prosperity rather than authoritarianism and dictatorship.Footnote ¹⁰⁵ The project of European integration, both the European Economic Community (EEC) and the ECHR, was in this way a part of a centre-right political project of guarding Western Europe against a revolution through the voting booth.Footnote ¹⁰⁶ The creation of an economically prosperous European common market was to be the foundation for a new ‘anti-totalitarian’ reconstitution of Europe. The EEC was understood as a means to promote the material reconstruction and welfare that would allow the Member States to defend themselves from the ‘totalitarian threat’ of communism.Footnote ¹⁰⁷ Within the new European public law order, ‘Europe’ came to represent a promise of saving the European peoples from themselves.Footnote ¹⁰⁸

This constitutional vision of Europe is expressed in the German Basic Law, which opens with the German people’s consciousness of their ‘responsibility before God and man’ as well as their ‘determination to promote world peace as an equal partner in a united Europe’.Footnote ¹⁰⁹ It is this responsibility and determination, it seems, which conveys authority upon the German constituent power and justifies the German people in giving themselves a new constitution.Footnote ¹¹⁰ In this way, as the German Constitutional Court put it in the Lisbon judgement, ‘the Basic Law calls for European integration’.Footnote ¹¹¹ Declarations of ‘open statehood’ towards international law, although somewhat vaguer in tone, are also present in several other post-World War II constitutions.Footnote ¹¹² This constitutional ‘openness’ or ‘friendliness’ to European law is a core feature of domestic constitutions within the new European public law order.Footnote ¹¹³ By entrenching the constitutional regimes of the Member States, the EEC and the ECHR emerged as integral to a new vision of stable constitutional regimes in Europe.

By creating a European order of ‘post-sovereign’ states, European integration and EU law made up a core part of a new European public law order that could finally replace the unviable world order of Droit Public de l’Europe.Footnote ¹¹⁴ The new European public law order expressed a vision of domestic public law based on the limitation of sovereignty and regulated interstate relations as a matter not of international law but of European law – EEC and ECHR law. But European law was also crucial to the reconstitution of Europe’s relationship to the (former) colonial world. The Community established with the Treaty of Rome included not merely ‘the six’ but also their Overseas Countries and Territories (OCT); albeit with a different status within the new Community.Footnote ¹¹⁵ In Part IV of the Treaty of Rome, an association was established between the EEC and the predominantly African colonies of France, Italy, Belgium and the Netherlands.Footnote ¹¹⁶

European integration and EU law were in this way not only integral to governing the relationships between European states, but also to the reconstitution of Europe’s relationship to the outside world. This applied to the world’s two superpowers, but also to the (former) colonies. The new European public law order, in other words, did not merely reconstitute the ‘internal’ and ‘external’ aspects of Droit Public de l’Europe (constitutional law and international law between ‘civilised’ nations). In an attempt to protect Europe’s privileged place in the post-World War II era, it also recreated the ‘dynamic of difference’Footnote ¹¹⁷ between coloniser and colonised, between Europe and its non-European ‘other’, which had underpinned and given meaning to Droit Public de l’Europe.

7. Eurafrica

In the decades leading up to the signing of the Treaty of Rome in 1957, the project of European integration was envisioned as part of the solution to the problem of ‘modernising’ or ‘reforming’ colonialism. Failing that, European integration became integral to managing the process of decolonisation while securing privileged access to trade and natural resources after formal independence via the creation of ‘special relationships’ and a renewed commitment to a civilising mission now under the term ‘development’.Footnote ¹¹⁸ The starkest example, as the rest of this article will demonstrate, is the realisation of the interwar project of Eurafrica, outlined in Part IV of the Treaty of Rome.Footnote ¹¹⁹ This project linked European integration, and a turn away from sovereignty within Europe, to the collective assertation of European interests abroad as well as the realisation of Europe’s ‘civilising mission’ in Africa.

The idea of Eurafrica first emerged as a central part of the justification of imperialism and the ‘civilising mission’ in nineteenth-century colonial thought.Footnote ¹²⁰ Eurafrica portrays the fate of Europe and Africa as inherently linked to one another. For both Europe and Africa to prosper, they must unite into a Eurafrican union, a commonwealth.Footnote ¹²¹ The Eurafrican union, however, was imagined not as a union of equals but rather as a body politic where Europe was the head and Africa the body.Footnote ¹²² The idea of Eurafrica was taken up by some of the interwar proposals for European integration as an integral part of the solution to the problem of Europe’s declining geopolitical status after World War One. Aprominent example is Richard Coudenhove-Kalergi’s 1923 pamphlet Paneuropa, which launched the highly influential Pan-European Union Movement that was supported by intellectuals such as Heinrich and Thomas Mann and politicians such as Winston Churchill, Konrad Adenauer and Aristide Briand.Footnote ¹²³ In interwar writings on Eurafrica, Europe and Africa are portrayed as interdependent but in a highly asymmetrical way: whereas Europe needs Africa’s raw materials and vast spaces, Africa is in need of Europe’s technology and capital.Footnote ¹²⁴

Throughout the interwar period, Eurafrica was portrayed as a ‘new and higher form of colonialism’, which replaced nationalist competition in a scramble for Africa with a new form of collective colonialism.Footnote ¹²⁵ The European empires were no longer capable of controlling the colonial world as individual empires, but they would perhaps be able to control the colonial world collectively if they united.Footnote ¹²⁶ This again would allow them to transcend interstate rivalries and provide them with the foundations for a European Union.Footnote ¹²⁷ If the European states gave up on sovereign authority vis-à-vis one another, they could keep exercising sovereign authority in a collective capacity over the remaining colonies. In this way, European integration and the collective exploitation of Africa were inherently linked to one another.Footnote ¹²⁸

After World War II, the Eurafrican project was again debated as an important part of the reconstitution of Europe. At the 1948 Congress of Europe, the Union of European Federalists presented a Draft of a Federal Pact, where they argued that:

The development of Africa also made an appearance in the 1950 Schuman Declaration that led to the creation of the European Coal and Steel Community, where Schuman stressed that ‘with increased resources Europe will be able to pursue the achievement of one of its essential tasks, namely, the development of the African continent’.Footnote ¹³⁰

From the interwar period to the 1950s, the idea of Eurafrica as a third geopolitical sphere in the Cold War was highly influential among European elites.Footnote ¹³¹ Africa was still exclusively under European control, and with its raw materials and vast spaces it held a powerful sway on the European imagination as a means to economic stability and energy self-sufficiency through joint colonial exploitation.Footnote ¹³² As demonstrated by Peo Hansen and Stefan Jonsson, the view was that this would provide Europe with geopolitical leverage.Footnote ¹³³ Crucially, it could provide Europe with the material basis to reassert power against colonial uprisings as well as other challenges from the Global South such as the emerging non-aligned movement of former colonies not to mention projects for Pan-Africanism. In the eyes of European leaders such as the Dutch Foreign Minister and later NATO Secretary-General, Joseph Luns, the EEC would ‘assure the conditions of an increasing prosperity to our old continent and permit the continuation of her grand and global civilizing mission’.Footnote ¹³⁴ African leaders, however, saw this differently. Kwame Nkrumah, the first Prime Minister and President of Ghana, for example, looked upon the EEC as nothing ‘but the economic and financial arm of neo-colonialism and the bastion of European economic imperialism in Africa’;Footnote ¹³⁵ a form of collective European colonialism ‘which will be stronger and more dangerous than the old evils we are striving to liquidate’.Footnote ¹³⁶

The association agreement created with Part IV of the Treaty of Rome did not, for the most part, integrate the colonial territories into to the EEC but rather established association with them. Nevertheless, as a department of France, Algeria was almost fully integrated into the EEC.Footnote ¹³⁷ Hence, when the Treaty of Rome came into effect with its promise of peace and prosperity, a violent war that claimed hundreds of thousands of lives was raging inside the Community. In one sense, Algerian Independence after the War in 1962 led to the end of the Eurafrican dream.Footnote ¹³⁸ Yet the OCT regime outlived the Algerian War of Independence and Europe continued to exercise power over the former colonies through the Yaoundé Conventions (1964–75); the Lomé Conventions (1975–2000) and the ACP–EU Cotonou Partnership Agreement (2000–20),Footnote ¹³⁹ which have continued to secure European economic interests in Africa.Footnote ¹⁴⁰

For some scholars, however, the lasting impact of Eurafrica as constituted by EEC-African association agreements is the part it played, as one actor among many, in foiling projects of establishing a genuine African Federation that held out the hope of preventing a Balkanisation of Africa.Footnote ¹⁴¹ That Africa emerged as a continent of sovereign nation-states from the 1960s, rather than as an African Federal Union, was not predestined. Yet the emergence of nominally sovereign African nation-states, rather than an African Federation, made it easier for the large Western trading blocs of the post-World War II era, including the EEC, to continue to exercise power over the Global South.Footnote ¹⁴² For some scholars, therefore, the very idea of state sovereignty, born, at least in part, out of the colonial encounter and a constitutive part of the old world of Droit Public de l’Europe, remains a poisoned chalice.Footnote ¹⁴³

8. Conclusion

This article is an attempt to remedy a fundamental flaw in the debate about European integration and EU law: the almost complete absence of a reckoning with the legacy of empire and imperialism. The project of European integration was agreed among three rapidly declining maritime empires – the French, the Dutch and the Belgian – and two failed fascist empires, the German and the Italian. The decline of the European empires is one of the most profound changes that shaped the twentieth century and it led to a fundamental transformation of the European states and the public law order that underpinned them. Nevertheless, the debate about European integration and EU law, for the most part, proceeds as if empire never existed.

This article demonstrates that European integration was an integral part of a broader transformation of the global order after the collapse of European imperialism. The European empires were underpinned by the public law order of Droit Public de l’Europe or Jus Publicum Europaeum, which regulated the relationship between the ‘civilised’, and hence sovereign, European states, as well as their colonial encounter with the ‘uncivilised’ world where political communities could not be considered sovereign. With the decline and eventual collapse of European imperialism after World War Two, ‘European’ international law gave way to ‘universal’ international law. For the first time in history, more or less all political communities on a global scale were recognised as sovereign states.

Yet, decolonisation in the imperial periphery was not the only way in which the public law order was transformed as a product of imperial decline. The end of empire instigated a fundamental transformation of the public law order of the European metropoles as well. This article demonstrates that if decolonisation was the product of imperial decline in the former colonies, European integration was part of the response to imperial decline in the metropoles. The article shows that European integration was integral not merely to attempts to manage imperial decline but eventually also to replace the public law order of European empires. Post-World War Two European public law, of which European integration is part, has three central tenets. First, a new type of anti-totalitarian domestic constitutional law which aimed to constrain sovereign powers internally by insulating certain aspects of political decision-making from ordinary politics. Second, a new European legal order founded on the limitation of sovereign power, which set intra-European relations apart from ‘normal’ international law. Third, the reconstitution of Europe’s relationship to its (former) colonies, importantly through the realisation of the interwar project of ‘Eurafrica’. European integration was central to all three tenets of this new European public law order.

The article demonstrates that precisely at the moment in history where sovereignty was extended to non-European political communities, Europe turned away from this old master principle both with regard to domestic constitutional law and intra-European relations. Yet the turn away from sovereignty and the nation-state was not merely a response to a fear of nationalism, as the literature often maintains, but also an attempt to reassert European interests and geopolitical autonomy in a world where Europe no longer was the centre of gravity. When the European metropoles were no longer capable of asserting their domination as individual empires, European integration allowed them to assert their interest collectively vis-à-vis the new ‘developing world’. By carving out a new space for Europe in the world in tandem with decolonisation, European integration emerged as part of the European solution to the ‘humiliation’ suffered by the end of empire. It is therefore not a coincidence that European integration was perceived as a neo-colonial project by many post-World War Two African leaders.

In contrast, the legacy of empire for the project of European integration is largely ignored or forgotten in Europe. This applies to public and scholarly debate as well as the official narrative of European integration. It is rarely mentioned that the backdrop to the project of European integration was not merely the decline of the maritime empires but also the attempt to reassert the old imperial privilege of Europe, importantly through a revival of the idea of ‘Eurafrica’. Rather than a project of reasserting Europe’s geopolitical interest, the story of European integration is for the most part told with few, if any, references to the legacy of imperialism. The relevant actors, or even competitors, are understood to be European institutions and nation-states, and the EU is rarely studied in comparison with the composite polities to which it bears striking resemblances, namely empires and federations. The official narrative about European integration has, furthermore, allowed its Member States to tell a comforting story about themselves that leaves out their tainted histories of colonialism and empire. As Kalypso Nicolaïdis puts it, Europe ‘exorcized the demons of its Member States by helping to purge their past and its own present of signs that empires had mattered for many of its Member States, as well as all of them collectively, right up to the foundation of the EC and during its first few years.’Footnote ¹⁴⁴ As scholars on European integration and EU law, however, we have a duty to question the founding myth of our discipline.