1.1 Introduction
The purpose of this book is to show ways in which Europe’s century-spanning history of colonialism has shaped the development of the European Union (EU) legal order. It is an account of the impact European colonialism has had on the formation of legal categories, on the drafting and application of primary and secondary law, on the methods of actors and the workings of institutions, and on the changes in EU membership over time.
The book should serve as an exemplification of how individuals, living on the European continent and elsewhere, have been affected by the ways in which EU law has carried through colonial-era legal practice and reasoning into our times.Footnote 1 In so doing, this book aspires to expand accounts of, and to visualize, people who have been affected by how the laws of the European integration project have been, and continue to be, constructed. These include people using the CFA franc in Benin; fishers in Greenland; North African railway workers in France; Algerian winemakers in the post-war era; or recipients of child allowance in West Africa in the 1970s.
Placing the study of the EU’s legal order in the context of European colonialism serves several functions.Footnote 2 It calibrates the classic narrative of what has influenced the EU’s construction and function. While the proposition that post-Second World War, inter-European peace animated the idea of a united Europe still stands, colonialism also shaped the outlook and methods that characterized the early days of European integration.Footnote 3 In this way, the chapters of this book will position the operation of EU law in the history of how colonialism connected different parts of the world, and open up the discussion about how the EU’s laws, institutions, and actors interconnect with colonialism and decolonization.Footnote 4 Just as reference is made to the history of the Second World War as a means of understanding why the EU came to be, Europe’s role in the history of colonialism should also be a point of reference in explanations of how EU law came to develop.Footnote 5
Understanding more about colonialism and the EU legal order is not merely, although is importantly also, a historical exercise. It has the potential to constitute a starting point for examinations of current EU law. This book attempts to link the way in which EU law has been drafted and applied with the ideologies and assumptions that sustained the practice of colonialism, in particular that of racial hierarchies and the justification of unequal treatment of people governed by the same state. It is a central concern of many of the authors of this book to seek an answer to the question of whether and how the ‘rule of colonial difference’, that is to say, treating people differently based on race and ethnicity, reverberates in the EU of today.Footnote 6
Many of the chapters aim to expand the account of where and to whom the EU legal order has reached, yet the attention of this book taken as a whole is directed inwards and towards the EU. This perspective acknowledges that colonialism, and its aftermath, inflicts damage upon the colonizer, not just the colonized – in this case on a European regional organization founded by states, some of which have had, and still have, colonies located all over the globe. While more often than not such a perspective has been secondary to a focus on what colonialism did to colonized societies, it is nevertheless recurrent in the history of anti-colonial thought. An early influential example is Aimé Césaire’s description in the essay Discourse on Colonialism,Footnote 7 which in part probes the damages that colonialism did to the European society, stating that the European colonizer has ‘overthrown, one after another, the ramparts behind which European civilization could have developed freely’.Footnote 8 The chapters of this book will give examples of where colonialism appears to have impaired the development of the EU’s laws and institutions.
It is the aspiration of this editor that the book will be part of a dialogue around the questions of how colonialism has shaped EU law, what it means for the legal system and those subjected to it that colonialism has shaped EU law, and how these connections should inform our understanding of the EU both in terms of its internal workings and its external activities, historically as well as today. Answering these questions, one may hope, could sharpen the analysis of, and prescriptions for the reform of, contemporary EU law and incline the EU to become a humbler and more mindful interlocutor on the global stage.
Having provided a definition of the meaning of colonialism used in this book (Section 1.2), and a background account of how the EU has regulated Member States’ colonies from 1957 until today (Section 1.3), this introduction will turn to three broad themes that emerge across the following fifteen chapters. Section 1.4 outlines the ways in which this book establishes colonial continuities in EU law. Section 1.5 considers how present EU law can be understood through colonial history. Section 1.6 examines how colonialism casts new light on the theory and concepts of EU law. Lastly, Section 1.7 introduces the structure of this book, which is divided into four parts – ‘Law’, ‘Actors’, ‘Exits’, and ‘Futures’ – based on the case studies used by the authors to examine the connection between colonialism and the EU legal order.
1.2 Definition: The Dual Meaning of Colonialism
Colonialism is a capacious and contested term. It is commonly, including in this book, taken to stand both for a form of rule and for a historical period of European territorial expansion. Nazmul Sultan describes the meaning of colonialism as having dual and intertwined claims. Colonialism encompasses both ‘a historical reference for the global event of European imperial expansion’ and an analytical category denoting ‘a territorial form of rule by one people over another’.Footnote 9 Sally Engle Merry refers to the same duality as the narrow and broad definition of colonialism:
In its broader sense, it is a relation between two or more groups of unequal power in which one not only controls and rules the other but also endeavors to impose its cultural order onto the subordinate group(s). In its narrower sense, the term generally refers to the European political, economic, and cultural expansion into Latin America, Africa, Asia, and the Pacific during the last four hundred years.Footnote 10
All chapters of this book reference the European colonial enterprise, which accelerated in the fifteenth century in North and South America, and culminated in the late nineteenth century in Asia and Africa. Colonialism, as a reference to this long historical passage of time, does not benefit from a summary as it ‘encompasses vastly different geographical regions, quite different historical periods, distinctive styles of colonialism among different European nations, and extraordinary diversity in the cultures of the peoples who were colonized’.Footnote 11
The latter stage of European colonialism in Asia and Africa in particular, sometimes referred to as ‘late colonialism’,Footnote 12 has in contemporary discourse, as in this book, become ‘constitutive of the meaning of colonialism’.Footnote 13 The Berlin West Africa Conference of 1884 to 1885, in which the method and policy of the partition and continuous colonization of Africa was agreed on by European states, the United States, and the Ottoman Empire, stands as a symbol of this intense period of colonization.Footnote 14 While explanations of this conference have varied over time and place, it has remained ‘an evocative and emotional historical problem’ that has ‘captured the imagination of the world’.Footnote 15 The imagery of European states ‘carving up’ the African continent between themselves and the notion of the ‘scramble for Africa’ have persisted as descriptions of nineteenth-century European colonialism and shaped the meaning of the term colonialism. Kwame Nkrumah frames this period as ‘the best illustration’ of colonialism.Footnote 16 Nkrumah explains the ‘European capitalist aggressiveness’ manifested in the ways in which political leaders of ‘Great Britain, France, Germany, Spain, Portugal, Belgium and Italy’ looked ‘beyond the seas for markets and storehouses of wealth and resources in order to consolidate their individual states and guarantee their economic security’ at times of economic insufficiency at home.Footnote 17 In this longer quotation Nkrumah captures the frantic and incessant process of late European colonialism in the text Towards Colonial Freedom:
In 1881 France extended her colonial sway over Tunis and, the year following, Britain secured control over Egypt. In 1884 the first German colony was established at Angra Pequena Bay in South-West Africa. The occupation of Togoland and Cameroons in West Africa followed. The spectacular advent of Germany as a colonial power provoked the jealousy of France. A French force was despatched to seize the unoccupied territory between the Cameroons and the Portuguese colony of Angola. This became the French Congo. In 1894 the tricolour was raised over Timbuktu, Dahomey and the Ivory Coast. The whole of the western Sudan was soon under French occupation. In 1885 a protectorate was established over Madagascar. Then ensued the Anglo-French colonial jealousy which culminated in a crisis in 1898 when the occupation of the Sudanese port of Fashoda threatened to upset Britain’s colonial annexations within that area. France withdrew and the Eastern Sudan came under the control of Britain. … Italy felt herself cheated of a possible field of expansion by the moves of Britain and France. […] In 1882 Italy occupied Assab, and three years later Massawa was taken. In 1898 Italian Somaliland was formed into a colony.Footnote 18
It is with the repercussions of this epitomizing yet fathomless period of European colonial expansion in the late nineteenth century, especially in Africa, that the chapters of this book predominantly grapple. Several different countries in Europe and Africa, and ways in which people living in those places have been affected by EU law for reasons that link to the colonialism described in the quote, are discussed in the chapters of this book.
However, some of the chapters that follow also consider colonialism elsewhere and in earlier periods. Ulla Neergaard (Chapter 13) and Stephen Coutts (Chapter 14) will show respectively how Denmark’s colonization of Greenland, and the United Kingdom’s colonization of Ireland, which dates back to at least the twelfth century, also exemplify how early European colonialism has shaped the EU’s legal order. This is particularly evident with regard to the dynamics underpinning changes in EU membership status. While the period that has dominated the definition of colonialism, and the inquiry of this book, is the European expansion into Africa and Asia from the late nineteenth century onwards, the links between the history of European colonialism and the development of EU law are complex and span multiple centuries.
The analytical meaning of colonialism as a form of rule is portable beyond the historical period of European colonial expansion. The colonial form of rule is characterized by one group’s domination of another group, which ‘includes a definition of the dominated population as different and inferior, usually expressed in an idiom of race’.Footnote 19 Sultan explains how what defined the method and ideology of European colonialism became a concept. He writes: ‘That European rule over the rest of the world was inseparable from developmentalism, racial hierarchy, economic exploitation, and psychological degradation was already well-known in the nineteenth century. It was only, however, in the interwar era that all these phenomena came together under the rubric of the colonial’.Footnote 20
Many of the authors in this book are interested in testing the presence of colonial ways of reasoning and thinking, especially in terms of understanding the place of race in past and contemporary EU law and policy. The chapters by Karim Fertikh (Chapter 4), Lionel Zevounou (Chapter 5), Diamond Ashiagbor (Chapter 6), Veronica Corcodel (Chapter 8), Janine Silga (Chapter 9), and Iyiola Solanke (Chapter 16) all address at length questions of how EU law has sustained or ignored difference in treatment based on race, and how that practice stems from colonialism.
For the authors of this book, colonialism means a historical period of colonial expansion by EU Member States to-be, characterized by unjust domination, economic exploitation, and racial hierarchies. Several authors further explain and theorize those characteristics of colonialism with the aim of understanding the ways in which they interconnect with EU law.
1.3 The EU’s Regulation of Colonialism from 1957 to Today: Structure and Language
The question of how to maintain a colonial order while negotiating a new form of European economic, political, and legal integration is certainly present at the founding moment of the EU. In 1957, when the Treaty of Rome created the European Economic Community (EEC), four of the original six Member States were colonial powers: France, Belgium, Italy, and the Netherlands. The law of the nascent EEC was adapted to assume a colonial inheritance from its Member States.
After long negotiations over how to integrate the colonies into the EEC, the drafters of the Treaty of Rome agreed to a Part IV that regulated the ‘association’ with the EEC of ‘overseas countries and territories’.Footnote 21 The latter was a euphemistic term already used in French colonial administration to designate colonies. At no point during the Treaty of Rome negotiations was any political leader from a colonized country or territory in attendance, consulted, or represented.Footnote 22
The ‘association’ meant that the EEC Member States’ colonized territories were not completely included in, nor totally excluded from, the EEC. The central provision of Part IV is Article 133 EEC, which stated that the Member States would agree ‘to associate with the Community the non-European countries and territories which have special relations with Belgium, France, Italy and Netherlands’. Concretely, this meant, first, a close trading relationship between the EEC and the ‘associated countries and territories’, through which the latter were to be gradually included in the EEC’s tariff system. The consequence of this was an open trade area controlled by Brussels. Further, with the EEC came the European Development Fund for associated African countries, which was to be administered by the EEC Commission. The fund ensured that companies from all six EEC Member States could compete for tenders financed by the fund, for instance infrastructure projects or extraction of raw materials, in colonized territories associated to the EEC. In her extensive work on the operation of the European Development Fund in this period, Véronique Dimier has shown how, ‘businesses were not just challenged by the new international landscape but benefited from the opportunities it offered, particularly those provided by development aid’.Footnote 23 In her chapter in this book, Dimier (Chapter 10) shows how personnel trained in colonial administration brought a specific colonial approach to law, especially a malleable approach to discretionary decision-making, into their work with the European Development Fund. This was particularly true of the process of awarding tenders to EEC-based or EEC-controlled businesses looking to establish or continue their enterprises in colonized territories.
As the Treaty of Rome ‘associated’ colonized territories to the EEC, the treaty simultaneously arranged legal categories, namely those of peoples, inhabitants, and workers, to exclude individuals who lived in colonized territories from legal benefits and representation.Footnote 24 These core categories of the Treaty of Rome separated people who were considered ethnically and racially European citizens from people who were not so considered, but who were subjected to, or citizens of, a Member State through colonialism. In so doing, foundational EU law replicated parts of colonial era citizenship laws of France, Belgium, the Netherlands, and Italy, which were designed to accept distinctions based on ethnicity and race between individuals subjected to the same state.Footnote 25 This is a theme that many of the authors in this book develop.
While the association regime’s provisions on trade and business investment were precise, and the legal distinction between the rights of the ‘peoples of Europe’ and the ‘inhabitants of the overseas countries and territories’ was sharp, there was no provision in the Treaty of Rome regulating the event of independence of an ‘associated country or territory’, and there is still no such provision in Article 198 Treaty on the Functioning of the European Union (TFEU), which has kept the language of Article 133 EEC.Footnote 26 In 1957 the scale of the association regime, in terms of the geographical area it covered and the populations it subjected, was considerable. The ‘associated countries and territories’ were listed in Annex IV to the Treaty of Rome as follows:
French West Africa: Senegal, French Sudan, French Guinea, Ivory Coast, Dahomey, Mauritania, Niger, and Upper Volta;
French Equatorial Africa: Middle Congo, Ubangi-Shari, Chad and Gabon;
Saint Pierre and Miquelon, the Comoro Archipelago, Madagascar and dependencies, French Somaliland, New Caledonia and dependencies, French Settlements in Oceania, Southern and Antarctic Territories;
The Autonomous Republic of Togoland;
The trust territory of the Cameroons under French administration;
The Belgian Congo and Ruanda-Urundi;
The trust territory of Somaliland under Italian administration;
Netherlands New Guinea
Algeria, Guadeloupe, Martinique, French Guiana, and Réunion were regulated separately in Article 227 EEC as integral parts (departments) of France. This meant that they were more closely integrated into the Common Market than those colonies that were associated. The repercussions of Article 227 for Algeria and its population are discussed in the chapters by Amel Benrejdal Boudjemaa (Chapter 12) and Daniela Caruso (Chapter 3). As Megan Brown also notes in her book, which frames Algeria as the seventh EEC Member State, Algeria’s inclusion in Article 227 happened as the Algerian War of Independence was ongoing.Footnote 27 Many of the countries listed in Annex IV to the Treaty of Rome were independent countries only a few years after the treaty was signed. For instance, most of ‘associated’ West Africa was independent by the end of 1960, namely, Senegal; the Republic of Mali (formerly French Sudan); Côte d’Ivoire; Dahomey (later Benin); Mauritania; Niger; and Upper Volta (later Burkina Faso).
Simply put, the drafting of the association regime happened amidst a global wave of decolonization, hence processes through which colonized countries became independent. The first wave of decolonization from European colonialism occurred in North and South America beginning in the late eighteenth century leading up to the First World War. In Africa and Asia a similar pattern began around the Second World War and continued well into the 1970s.Footnote 28 From this latter post-Second World War period onwards, the manifold processes of decolonization in Africa and Asia intertwined with a global trend towards rendering formal colonialism ‘a juridically unacceptable international norm’.Footnote 29 In April of 1955, just over a year before the Intergovernmental Conference negotiating the Treaty of Rome started in the Château de Val-Duchesse, the Bandung conference took place in Indonesia. If the Berlin West African conference stands as a historic symbol of European colonialism in the late nineteenth century, the Bandung conference stands as a symbol for the global movement of decolonization in the 1950s and 1960s. During the conference in Bandung, political leaders from Asian and African countries discussed the premisses of global justice and what a reformed world order should look like after colonialism.Footnote 30 In this same period, the United Nations was an important, if imperfect, institutional medium for decolonization. Antony Anghie summarizes:
Virtually every facet of the UN system participated in this project: the provisions in the UN Charter that dealt with non-self-governing and trusteeship territories, the famous General Assembly Resolutions articulating the right to self-determination and the opinions of the International Court of Justice (ICJ) in Western Sahara and Namibia, all addressed this question. The modern doctrine of self-determination, then, was formulated in response to the whole phenomenon of colonialism.Footnote 31
The foundation of the EU’s association regime was laid as a global community steadily moved towards rejecting colonialism and as the right to self-determination was claimed by peoples all over the globe. In this historical context, the drafters of the Treaty of Rome deliberately rejected the idea of using the word ‘peoples’ to describe those living in the ‘overseas countries and territories’.Footnote 32 Instead, the word ‘inhabitants’ of the ‘overseas countries and territories’ was used. The drafters of the Treaty of Rome, most importantly the French delegation, did not wish to replicate or align the EEC language used to describe colonized peoples with the language of decolonization used in different texts and fora of the United Nations.Footnote 33 In future EU treaty revisions it would be opportune to reconsider the use of ‘inhabitants’ in Article 198 TFEU to describe those living in ‘associated countries and territories’ and replace it with ‘peoples’, so that within EU law the possibility of claiming the right to self-determination on the part of colonized territories is unequivocally recognized.
In lieu of any formal legal procedure, an oblique ‘note to the reader’ was attached to the Treaty of Rome at some point in 1967, acknowledging the independence of several formerly associated countries.Footnote 34 During the 1960s, new legal arrangements were instated between the EEC and formerly ‘associated’ states. An early example is the Yaoundé Convention of 1963 between the EEC, eighteen ‘Associated African States’, and Madagascar. In her chapter, Marise Cremona (Chapter 2) shows how the formation of the EU legal principles of direct effect and reciprocity was influenced by the postcolonial relationship underlying the Yaoundé Convention.
The list of ‘associated countries and territories’ later expanded in 1973 when the United Kingdom and Denmark joined the EC with former colonies still within their jurisdictions. Moreover, Ireland, which also joined in 1973, is a former colony of the United Kingdom. The territorial implications of that long history were again brought to light when the UK voted to leave the EU in 2016, as Stephen Coutts shows in Chapter 14. In 1986, Spain and Portugal entered the EC with colonized territories within their respective jurisdictions – a fact that still has repercussions for the geography of EU migration policy, as shown by Veronica Corcodel in Chapter 8.
The legal construction whereby Member States’ colonies are associated with the EEC/EC/EU has remained through all treaty iterations, into the Lisbon Treaty, and is now found in Part IV TFEU and Annex II.Footnote 35 The Maastricht Treaty of 1992 introduced the category ‘Outermost Regions’ to encompass territories more embedded in Member States’ constitutional structures, following the same logic as Article 227 EEC. This construction is now found in Article 349 TFEU.
In 2021 the European Council issued a new ‘Decision on the Association of the Overseas Countries and Territories (OCTs)’,Footnote 36 which details the structure of the association regime. Recital 11 of the preamble states:
The special relationship between the Union and the OCTs is moving from a development cooperation approach to a reciprocal partnership to support the OCTs’ sustainable development. The progress achieved so far should be consolidated and reinforced. Moreover, the solidarity between the Union and the OCTs should be based on their unique relationship and their belonging to the same European family.
The euphemistic language is striking for the twenty-first century reader; ‘special relationship’, ‘unique relationship’, and ‘family’. The European practice of reorganizing the language used to describe a colonial relationship in the post-war period onwards has been subject to sustained criticism.Footnote 37 As this book aims to contribute to the debate around the role of colonialism and the EU’s laws and institutions it is meaningful to ask the question: what would happen if the preamble’s language recognized the colonial nature of the relationship? What function do the euphemisms actually serve at this point? The decision’s language cannot be understood as diplomatic, as this would imply that its opaqueness is in fact tactful, and serves all parties. Rather, more careful and accurate policy language would make the premiss of the ‘reciprocal partnership’ more transparent, which might serve the exchanges between the EU and the authorities of the ‘overseas countries and territories’.Footnote 38
Following the overall structure of the association regime since 1957, the 2021 decision details policy governing trade between the EU and the ‘overseas countries and territories’, as well as the specific funds used for, and aims of, development aid.Footnote 39 It contains, like previous such decisions, provisions emphasizing that ‘[t]he Union, the OCTs and the Member States to which they are linked shall regularly engage in a comprehensive and political dialogue’.Footnote 40 While this is a meaningful development when compared to the original construction of the association regime, which did not recognize any involvement of the political leadership of the ‘overseas countries and territories’, the unilateral nature of this type of council decision should nevertheless be underlined.Footnote 41 Many of the chapters in this book question the EU style of decision-making vis-à-vis former and current colonies of its Member States, as will be discussed in Section 1.4.
The fact that it is ‘OCT law’, as the provisions regulating the ‘association of overseas countries and territories’ are called in EU vernacular, that has constituted the EU’s formal regulation of colonialism and continues to so do is referenced in many of the chapters. Ulla Neergaard’s chapter (Chapter 13), in particular, explores the exceptional story of Greenland, which has gone from being a member of sorts (although not a Member State) of the then EC through Denmark, to withdrawing from the EC while remaining in ‘OCT status’. The backdrop of Neergaard’s chapter is the EU’s recently significantly increased interest in the Arctic region for geopolitical reasons. The colonial relationship between Denmark and Greenland sustains the EU’s claim to a physical presence in the Arctic region today.
Of equally current relevance, as this chapter was being written a violent protest was taking place in New Caledonia, a French colony and an ‘associated overseas country and territory’ of the EU. In late spring of 2024 France proposed a constitutional amendment that would give French citizens who have been living in New Caledonia for over a decade the right to vote in local elections. Protests subsequently erupted because many in New Caledonia oppose extending voting rights to French settlers, believing that this will impede the political struggle for independence from French colonial rule. The proposal was withdrawn later that summer. This episode exemplifies that rather than coordinating a ‘European family’, the EU participates in governing a colonial situation, which in the specific case of New Caledonia, is the subject of sustained challenge from people desiring independence from this form of rule.
The structure of the association regime, as well as the nature of the language used to describe and justify it, has remained without major changes since 1957. What has changed, importantly, is the number of countries and territories ‘associated’. The existence of ‘associated overseas countries and territories’ means that EU law will look different depending on where you are standing in the world. The EU’s legal order claims expansive inclusivity of territories based on colonial ‘links’, yet it does so through specific provisions, decided in Brussels, that determine how peoples and societies concerned can benefit from EU law. The association regime is an important way in which colonialism and the EU legal order interconnect. The subsequent Sections 1.4–1.6 will further discuss such connections, highlighting the themes that the chapters of this book bring to the fore.
1.4 Establishing Colonial Continuities
The question of continuity between a colonial history and the present is contentious. Partha Chatterjee exemplifies how the idea of continuations, first between pre-colonial times and colonial times, and then between colonial times and postcolonial times, has always been the subject of struggle.Footnote 42 Positions in favour of, and against, seeing and discussing connections between past and present prompt questions about how to write history and how to comment on our contemporary society.
The authors of this book, in line with a central proposition of postcolonial scholarship, acknowledge that the impact of colonialism on the development of EU law did not end with formal decolonization.Footnote 43 The question then becomes how to theorize that impact, and to distinguish between different forms of connections between past and present.
Identifying continuity is not the same as drawing a comparison between then and now. Section 1.5 will discuss the reappearance of law and politics similar to those of the colonial era in our times, and the question of how we may use comparisons between then and now to sharpen critique of today’s law and politics. Such an exercise is distinguishable from, while related to, the question of colonial continuities. Two propositions thus exist side by side: the EU legal order has been shaped by the continuity of colonial law and policy; and it is of importance to analyse and discuss the reappearance of laws and policies that bear similarities to those of the colonial era in the EU of today.
In this book, colonial continuity means a situation in which EU law in some form enables the continuation of a colonial legal practice of one of its Member States, and sometimes with the result that it is elevated to EU-level law and policy. The association regime discussed in Section 1.3 is one good example of colonial continuity.
As a regional organization founded in 1957, the EU is one step removed from the first colonial encounter between European states, later EU Member States, and countries located on different continents that were colonized. EU law came after the initial ‘large-scale transfer of laws and legal institutions’ from the colonizer to the colonized had already taken place.Footnote 44 The EU, therefore, is not inventing colonial law and policy as much as it is adapting to assume and continue a colonial inheritance from its Member States.
Early literature on law and colonialism studied with great sophistication the ways in which law constituted the colonial enterprise and how colonial law affected colonized societies and their legal systems.Footnote 45 Sally Engle Merry, in reviewing this body of literature, pointed out how the relationship between colonialism and law is not merely ‘the simple process of imposition of law: instead there are spaces of resistance, struggles among colonizers, and forms of accommodation by colonized’.Footnote 46 Merry shows that colonial law is not merely, though is also, a vehicle of domination. It also provides avenues of resistance to colonial power. This means that when we think of colonial continuities in EU law we are not only searching for ways that the EU carries through a colonial posture of domination over others, but are also looking for patterns of resistance to colonial legal politics.
It is of analytical importance that ‘continuity’ be interpreted strictly, underlining that the word refers to the unbroken operation of something over time. As Antoine Vauchez also points out in Chapter 15, the use of different words to analyse the meaning of colonialism today, such as ‘“legacies”, “continuities”, “footprints”, “imprints”, “traces”’ betrays a certain lack of analytical robustness. Ann Stoler makes the same point regarding the terminology and explains that such ‘rubrics instill overconfidence in the knowledge that colonial histories matter – far more than they animate an analytic vocabulary for deciphering how they do so’.Footnote 47 She cautions that an overly wide analytical language risks, quoting Michel Foucault, ‘ready-made syntheses’.Footnote 48
With this in mind, taking law as a prism through which to search for continuity has certain benefits. Law is by nature and design suited to concretizing the unbroken operation of a form of rule, including its politics and reasoning. Legal actors in particular provide, as Vauchez explains in his chapter, a ‘privileged entry-point into the study of continuities’. Law and legal actors frequently work with tradition and precedent, including when tradition and precedent is being challenged. Legal continuity, understood as the unbroken operation of a certain legal category or way of reasoning, has the benefit of being traceable through texts. Many of the authors in this book study primary law, secondary legislation, case law, administrative decisions, and archival materials such as letters, statements, and reports by bureaucrats and administrators working in national as well as EEC/EC/EU institutions. It is by piecing these documents together that many of the authors in this book show colonial continuity. Michel Erpelding ends Chapter 11 by describing the act of identifying how previously overlooked or ignored colonial legal practices were in fact ‘sources of inspiration’ for the development of EU law:
In that regard, they remind one of spolia, or individual stones extracted from dismantled structures and reused in more recent buildings, sometimes serving a slightly different purpose. Identifying these spolia, and thereby the continuities and discontinuities between past and present legal practices, might prove a useful contribution to present-day debates about European supranational institutions, their potentialities, and their limitations.
Alongside enabling colonial continuity, the EU has facilitated discontinuity with a colonial past too, as is shown in Stephen Coutts’s chapter on the effects of Brexit on Ireland (Chapter 14). Coutts explains how Ireland’s economy had historically developed in order to service rather than compete with the metropole, the United Kingdom, and that EU membership allowed Ireland to develop its industrial sector and diversify its trade. In other words, in Ireland’s case EU membership was a vehicle for discontinuing colonial-era political and economic patterns established by the United Kingdom, which continued after Ireland’s independence in 1921.
The existence of colonial continuity is a claim to be handled with care and precision. It is a claim that should be placed alongside signs of discontinuity and change. This book shows continuity through the prism of the application and interpretation of primary and secondary law, through the biographies and work of actors, as well as within the specific example of the policy and law that underpins the EU’s global interaction, what in EU vernacular is called ‘external action’.
1.4.1 Application and Interpretation.
Many of the chapters in this book deal with the application and interpretation of EU law. The chapters by Karim Fertikh (Chapter 4), Daniela Caruso (Chapter 3), Marise Cremona (Chapter 2), and Lionel Zevounou (Chapter 5) are illustrative examples, which show the variety of ways in which colonial continuity can be traced beginning at the point of the EU’s foundation, and through how EU law is applied by EU and national decision-makers, and interpreted by the Court of Justice of the European Union (CJEU).
In Chapter 4, Karim Fertikh shows colonial continuity in the application of early EU social security law and the freedom of movement of workers provision. By exploring the archival material of ministries for social security of the then EEC/EC Member States, Karim Fertikh’s chapter explains how the EEC/EC sustained the coexistence of a net of social security benefits for workers from Member States’ former colonies alongside and on equal footing with the social security scheme for European workers in the late 1950s to the 1970s. Fertikh writes: ‘EEC law responded to this perpetuation of the relationship between colonizers and colonized by treating colonial migration as a legitimate exception to the migratory European preference.’ In the 1970s, contemporaneously to the United Kingdom’s accession to the EC, Fertikh describes how different actors, including the CJEU, changed course and hierarchized the two legal regimes, leading to ‘a racializing of the European border’. Fertikh is inviting his reader to consider the question whether the racial boundary, which he traces up to the 1980s, is visible today.
Daniela Caruso’s chapter (Chapter 3) explores the multiple ways that colonialism conditioned the rise and fall of the Algerian wine industry. The rise of the wine industry was prompted by the needs of the French wine market during the period when Algeria was a French colony, and its fall by the construction of the EC’s 1970 Common Wine Policy. Algeria became independent in 1962. Using the concept of ‘non-party’, Caruso outlines how the then EEC/EC continued a colonial form of rule-making and ‘colonial wealth diversion’ vis-à-vis Algeria in its wine regulation. She writes: ‘Algeria’s excision from the EEC’s wine market was deeply harmful and yet not actionable – a pattern both specifically colonial and ubiquitous in space and time.’ Today, Caruso shows, the short-sightedness of this continuation of colonial forms of rule-making in relation to Algeria is clearly visible, and she describes how short-term interests were allowed to prevail ‘over geopolitical stability or transnational equity’.
Through a close reading of the Bresciani case,Footnote 49 which interprets the Yaoundé Convention,Footnote 50 in Chapter 2 Marise Cremona shows how the ‘EU’s complex colonial and decolonization inheritance has shaped the legal concept of direct effect in its integration-led trade agreements, and indeed the nature of the EU’s emerging external relations in the 1970s and beyond’. In EU law, if a provision has direct effect, an individual can invoke that provision in court vis-à-vis the state. Direct effect is a principle that expands and effectuates the application of EU law. Cremona explains how for the CJEU in Bresciani the non-reciprocal relationship between the EEC and former Member State colonies indicated a ‘closeness’ and therefore direct effect was both a ‘manifestation and an instrument of the integration of former colonies into the Community trading system’. Cremona shows colonial continuity through the CJEU’s legal interpretation, and how an ‘EU-centricity’ has lived on in trade agreements still in force today.
Chapter 5 by Lionel Zevounou shows the relationship between the application of EU law and colonial continuity from a different angle. Zevounou shows how discrimination based on race in relation to North African public sector railway workers in France has deep colonial roots and continued for decades after decolonization, and how this discrimination has coexisted with the EU’s principle of non-discrimination based on race, including the Charter of Fundamental Rights of the EU and the Race Equality Directive from 2000.Footnote 51 Through an analysis of the ways that French judges refuse to acknowledge the concept of ‘race’, Zevounou shows the reader how a continuum of colonial racial discrimination exists side by side with the EU’s – undoubtedly applicable – primary and secondary law guarantees against discrimination.
1.4.2 Actors.
In Chapter 15, which considers the growing literature on the entanglement between EU law and colonialism, Antoine Vauchez explains how a colonial perspective can inform and transform our understanding of EU law. Vauchez suggests a research agenda that centres ‘on processes of transfer, reinvention, adaptation and incorporation that allow both continuities and discontinuities to be accounted for’. In such processes of transfer, Vauchez continues, ‘lawyers (together with bureaucrats) are arguably key producers of continuities, and therefore provide a privileged entry-point into the study of continuities between the (post-)colonial contexts and European law projects’. The chapters by Véronique Dimier (Chapter 10) and Michel Erpelding (Chapter 11) illustrate Vauchez’s point.
Véronique Dimier’s chapter opens with a quote from a French colonial bureaucrat: ‘We must pretend to follow the laws.’ Dimier shows how personnel trained in colonial administration went on to serve in EEC institutions, and in particular in the European Commission in its work executing the EEC’s development policy through the European Development Fund (EDF). These bureaucrats brought ‘a colonial attitude towards legal compliance’ to these new EEC institutions. This attitude entailed purporting to ‘“adapt” general colonial regulations to the nuances of African realities’, a position that in turn served to validate ‘variability and flexibility of colonial regulations and the role of colonial officials’. These attitudes were forged in the nature of colonial lawmaking, which Dimier notes is ‘discriminatory and derogatory’; ‘within the same territories, two legal systems coexisted, tailored for two distinct populations and delineated along racial lines’. She traces this colonial attitude to law through the actors of the European Commission working with the EDF at the outset. She concludes by noting how in 2006 the Commission still encouraged its delegation working with aid in Eritrea to show ‘flexibility and constructiveness’.
Michel Erpelding explains the legal and personnel continuities between the Mixed Courts of Egypt and the Mixed Court of Tangier, which were established within a colonial context in the late nineteenth century, and the CJEU. He shows that these mixed courts, instated to guarantee the individual rights of Westerners and competent to examine treaty-based claims by individuals against sovereign states, contributed to the origins of European law. Most notably, Erpelding shows how in the early 1950s Nicola Catalano, an influential early judge of the CJEU, wrote an opinion outlining a prototype principle of primacy of treaty law during his time as Legal Counsel to the International Zone of Tangier. The principle of primacy later became a foundational general principle of EU law. In his chapter, Erpelding evinces that European law did not draw its origins from individual Western legal traditions and institutions alone, but also ‘from legal institutions and practices developed on Europe’s colonial “peripheries”’.
1.4.3 Global Interaction.
In Chapter 2, Marise Cremona shows how, in its earlier external trade case law, some members of the CJEU understood trade relations between former colonies and the EEC as a ‘privileged relationship’, and relationships between the EEC and other states (in the example she analyses Portugal, a former colonial power) as representing the ‘classical international legal order’. This type of distinction in the EU’s interaction with the world, which expresses a paternalistic approach towards Member States’ former colonies, is visible in Ulla Neergaard’s chapter (Chapter 13), which addresses Greenland, and the chapter by Amel Benrejdal Boudjemaa (Chapter 12), which concerns the EU’s relationship with Algeria.
In addition to showing the remarkable trajectory of how Greenland became an ‘overseas country and territory’,Footnote 52 Ulla Neergaard also shows how the EU is relying on Greenland’s continuous status as a Danish colonial territory to establish a new Arctic policy. Neergaard calls this policy ‘Eurarctic’, as it is reminiscent of the ‘Eurafrica’ idea, which influenced European colonial policy in the first half of the twentieth century and according to which the African continent relied on Europe for its development, economic, political, and cultural, while Europeans relied on the African continent for resources. Through this lens Neergaard explores how ‘Danish colonialism is at the core of the EU’s “passage” to the Arctic’, as the EU’s interest in the Arctic centres on ‘support for sustainable development, security interests and possible access to natural resources’.
Amel Benrejdal Boudjemaa opens her chapter by asking ‘how was it possible for Algeria, a Muslim country in the southern Mediterranean, to join the EEC under the Treaty of Rome and remain a “member” until 1976, when its withdrawal was formalised, even though it had gained independence in 1962?’ Benrejdal Boudjemaa shows that we can identify an answer to this question by understanding ‘European needs and interests, especially those of the French’, and by appreciating the EU’s ‘flexible approach to borders’. She then follows the continuation of an approach, self-centred and flexible towards borders, vis-à-vis Algeria through various generations of EU ‘external’ policy: the Euro-Mediterranean Cooperative Proposal; the Union for the Mediterranean; and the European Neighbourhood Policy. While explaining how the EU and Algeria have shared interests in the Mediterranean region, which can sometimes be addressed in a mutually beneficial manner, Benrejdal Boudjemaa notes how the EU in general cannot help but approach Algeria with a combination of paternalism and self-interest. It is, she concludes, a ‘challenge of continuity’.
In 2024 it was proposed that the EU should have a new commissioner for the Mediterranean, the rationale being that a long-neglected region should get the EU’s undivided attention and ‘comprehensive partnerships’ should be developed.Footnote 53 Benrejdal Boudjemaa points out how a continued colonial posture, meaning self-serving and paternalistic, towards Algeria and other former European colonies in the Mediterranean region, has always been unconstructive and short-sighted. Perhaps the EU has failed to notice this. Caruso writes in Chapter 3: ‘The tables have turned, and while EU legal scholars justly dissect the past in light of postcolonial insights, the fact remains that some bridges were burnt and no amount of European soul-searching will build them up again.’
What, then, can remedy what has been lost by the EU’s continuous colonial posture towards former European colonies? In an essay in European Law Open, reviewing the EU’s interaction with the rest of the world through the example of ‘norm-exportation’, Sarah Nouwen asks: ‘How can the EU avoid an autobiographical understanding of itself?’ She answers: ‘[C]ritical reflexivity and the ensuing humility are […] essential to recognize continuities between European colonialism and the present.’Footnote 54 Making the same connection between history and humility as Nouwen, many authors in this book explicitly or implicitly recognize that beginning to discontinue colonial practices would require an EU that interacts with the world with humility and self-awareness.
1.5 Understanding the Present
Some chapters of this book, as discussed in Section 1.4, lay out patterns of legal documents, archival material, and personal biographies from the 1950s and 1960s onwards to show how colonialism continued and shaped the development of EU law after formal decolonization, in some cases until today. Other chapters start by analysing the current state of EU law and policy and use the history of colonialism to better understand why the present looks the way it does. While the former approach establishes unbroken colonial continuity, the latter approach examines reappearances of law and politics equivalent to that of the colonial era and compares the past with the present. Drawing an analytical distinction between these two approaches does not mean that they are mutually exclusive. In fact, many of the chapters in this book, for instance those authored by Daniela Caruso (Chapter 3), Diamond Ashiagbor (Chapter 6), Ulla Neergaard (Chapter 13), and Kako Nubukpo (Chapter 7), use these approaches side by side. Rather, the distinction shows that there are different ways to initiate analyses of how colonialism has shaped EU law. Such analyses can start in the past and move forward, or start in the present and search backwards.Footnote 55
In laying out her opinion on the relationship between history and the legal politics of the present, Lauren Benton clarifies:
A more effective way to bridge past and present concerns lies in making legal politics an object of analysis, a move that in turn reflects a commitment to tackling the problem of structure and agency in law. Analysis of legal politics in any period can help yield insights about its functioning in other times and places, in particular by pointing, via analogy, to dynamics in the relation of power and law, and in law’s relation to inequality and difference.Footnote 56
In many chapters of this book it becomes clear that studying colonial legal politics teaches us about EU law’s relation to inequality and difference in the past as well as today. Several of the authors in this book, in different ways and through different examples, observe the pervasiveness of unequal treatment based on race and ethnicity in Europe and find in colonialism a context that provides further explanations. This is true of, for instance, the chapters by Lionel Zevounou (Chapter 5), Diamond Ashiagbor (Chapter 6), Veronica Corcodel (Chapter 8), Janine Silga (Chapter 9), and Iyiola Solanke (Chapter 16). Understanding present EU law with reference to the ways in which colonial legal politics operated means clarifying the pervasiveness of unequal treatment and illustrating the recurrence of using law to draw distinctions between people based on race and ethnicity. Noting the recurrence of what Chatterjee named the ‘colonial rule of difference’ today, has more critical power than simply observing contemporary discriminatory practices without acknowledging similar laws and policies that preceded them.Footnote 57
However, when contextualizing the reappearance of legal techniques typical of the colonial era, or using comparisons between then and now to sharpen critiques of today, determinism should be avoided. In relation to how colonial entanglements iterate through the decades, Ann Stoler points out that it is important not to ‘gloss over the creative, critical, and sometimes costly measures people take to become less entangled – or to make something new of those entanglements’.Footnote 58
Certain legal and political practices, such as using law to discriminate based on ethnicity and race, are not a constant presence but may reside and may reappear in society. Framing analysis of how the legal practice of today relates to the practice of the colonial era does not benefit from being presented as uninterrupted, as this would risk losing nuance, miss out on counter-examples, and ascribe roles of perpetrator and victim deterministically, which in turn risks limiting the number of situations that could benefit from comparison between the present and colonial history.
Instead, and as many of the chapters in this book show, a constructive starting point is to provide answers to questions that acknowledge a connection between past and present. Do techniques typical of colonial lawmaking reappear today and how are they visible? What accounts for such reappearances? The underlying ethos of this analysis of how the present connects to the past is that a richer understanding of how we got to where we are is a way of beginning to undo some of what we are critical of in the present.
1.5.1 Illustrating, and Undoing, Racism.
EU institutions have repeatedly acknowledged that racism, between individuals and on a structural level, is a significant societal problem facing the EU and people living in the EU.Footnote 59 In different ways, the chapters by Veronica Corcodel (Chapter 8), Janine Silga (Chapter 9), and Iyiola Solanke (Chapter 16) observe racist practices within EU law. Corcodel examines the ‘racialized sedentary bias’ in current EU migration law and traces its colonial roots. Janine Silga shows the ‘legacy of the hierarchical human order stemming from colonial racism’ in contemporary EU development policy. Iyiola Solanke shows how EU law is underpinned by ‘ideas that may be harmful to racialized peoples’ and how a decolonial approach to the research and teaching of EU law can undo some of those presumptions, ideas, and structures.
Veronica Corcodel starts the analysis of her chapter with the difference between how EU migration law was used to respond to the 2015–2016 and 2022–2023 refugee ‘crises’, the latter in the context of the Russo-Ukrainian war and the former in the context of conflicts in the Middle East and Africa. She identifies how these differentiated EU legal arrangements replicate colonial law and policy, in particular how the ‘racialized sedentary bias’, according to which ‘the desirable or normal state of the colonized population was perceived as their remaining in their place of origin’, recurs as a guiding principle of EU migration policy. Corcodel explains how ‘the impoverished situation in the Global South came to shape a bias of “bogus” refugees, underpinning policies and practices of regional containment in continuity with the colonial sedentary bias’. Differently from the reception of refugees fleeing the Russo-Ukrainian war, ‘the 2015 approach, under which the figure of the asylum seeker from the Global South is overshadowed by that of the irregular migrant, carried forward a pre-existing racialized “non-entrée regime”’.
Janine Silga describes how the merging of two EU policy fields – development and migration – through the use of ‘migration-based conditionality’, namely conditioning aid to a country on its readmission of nationals, reveals a ‘legacy of the hierarchical human order stemming from colonial racism’. Silga traces the emergence of migration-based conditionality in the context of the external dimension of the EU migration policy, and then follows its use to the Samoa Agreement, which is the latest framework agreement between the EU and African, Caribbean, and Pacific countries. Silga explains how ‘readmission and return of third-country nationals staying irregularly in the EU has become a priority (if not the priority) of the external dimension of the EU migration policy’, and the ways in which ‘migration-based conditionality has emerged as a way of inciting and coercing non-EU countries into following the same logic’. Silga’s chapter shows how, when looking at EU migration policy and EU development policy simultaneously, ‘racism becomes an evident part of the equation’.
Iyiola Solanke’s chapter poses the question of what happens when we take colonialism as the starting point for our interaction with EU law, including its research and teaching. Her chapter looks to the future and lays out a vison for the principles that would guide a decolonization of research and teaching of EU law, and how this in turn would ‘open up the world of European integration and EU law to a new generation of Black scholars and audiences, both in Europe and beyond’. She explains how in the context of education, decolonization refers to ‘the long-term pedagogical impact of political colonization, such as the continued use of the colonizers’ language and scholarship to teach and assess learning’. In this context, Solanke explains the need to reduce ‘racial homogeneity … in relation to research, teaching, management and leadership in the EU and EU law’. Among others things, decolonization ‘is part of a larger agenda: it is ultimately about social justice and building a strong and intentionally anti-discriminatory democracy in Europe’.
The chapters by Corcodel, Silga, and Solanke, while different, start with the contemporary state of EU law and the field of EU legal studies and find in colonialism an explanation, and in Solanke’s chapter, in decolonization a remedy. Placing the question of how racism features in EU law, its application as well as its research and teaching, in the context of colonialism shows the ways in which the problems European society is facing today are not new but have iterated for a long time. The infliction of racism in EU law and European society is what Aimé Césaire called the ‘boomerang effect of colonization’.Footnote 60
1.6 Reassessing Theories and Concepts
The chapters of this book show how the case studies and examples produced by acknowledging the role of colonialism in European integration benefit the study of legal concepts that have long preoccupied those engaged in the theorization of EU law. Sovereignty, federalism, legal pluralism, and citizenship feature in many of the chapters, not as self-referential and self-contained descriptions of how the EU works, but as openings for further perspectives and comparisons. Such perspectives and points of comparison are often situated in Africa, rather than within Europe or the United States. Kako Nubukpo’s chapter (Chapter 7) on the EU’s role in the quest for monetary sovereignty in West Africa, Michel Erpelding’s chapter (Chapter 11) on the impact of quasi-federal legal systems situated in North Africa on early CJEU jurisprudence, and Diamond Ashiagbor’s chapter (Chapter 6), which contrasts the social dimension of the federated systems of the EU and the African Union (AU), are all illustrative examples of such perspectives and comparisons.
In different ways, this book shows that the meaning and function of legal concepts used in EU law will be thickened if colonialism is taken into account. This means incorporating further examples of where, how, and in relation to whom EU law concepts have been used. As evinced in the chapters cited, the geography of which places have shaped EU law is expandable. One way that such expansion of conceptual meaning happens is through the circulation of legal concepts, which Antoine Vauchez writes about in Chapter 15. Vauchez writes that scholarship that considers the role of colonialism in EU law brings out the ‘circulation of legal categories used to define post-national forms of relationship (union, community, federalism, association) both as they are currently used and as they circulate back and forth between the colonial and the European contexts’. In other words, documenting and analysing such circulation alters the meaning of legal concepts.
In his book The Nation and Its Fragments, Chatterjee goes one step further and explains that as the ‘rule of colonial difference is part of a common strategy for the deployment of the modern forms of disciplinary power’ then the ‘history of the colonial state, far from being incidental, is of crucial interest to the study of the past, present, and future of the modern state’.Footnote 61 Using Chatterjee’s conceptual circle, the fact that discrimination based on ethnicity and race exists (one expression of the rule of colonial difference) in Europe today, indicates that the construction of the ‘colonial state’, by which Chatterjee means the state constructed for colonial rule, can explain the workings of the modern European state.
Chatterjee’s work focuses on state and nation, and how these concepts were determined by the way colonialism transmitted between colonizer and colonized. To this idea of circulation we can add Aimé Césaire’s more forceful framing of the same phenomenon, namely, and as cited earlier, as the ‘boomerang effect of colonization’. A possible way of thinking about some of the chapters in this book is that they are concerned with a conceptual boomerang effect. The ways in which concepts such as federalism, pluralism, sovereignty, and citizenship were used and forged during and since colonialism, and most importantly how they were grafted on the rule of colonial difference, when recognized by scholarship, inevitably shoots back into EU legal theory. This boomerang effect gives the concepts new layers of meaning and the theory of their application new examples and case studies.
Of particular importance, as the chapters by Kako Nubukpo (Chapter 7), Diamond Ashiagbor (Chapter 6), and Stephen Coutts (Chapter 14) discussed in this section show, is how an expanded understanding of these concepts shows the effects of EU law and policy on people’s everyday life. Increasing the granularity of these concepts by recognizing how they are constituted by colonialism offers a more precise view on how they interact with people’s lives. When colonial contexts are included in the study of these concepts in EU law, the groups of people and life situations they describe are expanded, compared to excluding colonialism when interpreting the meaning of these concepts. In Diamond Ashiagbor’s chapter this is evident in an account of how EU federalism’s shortcomings in promoting social and labour protection impacts the lives of people in Europe, and in Africa. In Stephen Coutts’s chapter it is seen in an account of how EU law scaffolded and neutralized a postcolonial plural legal order to the benefit of people living and working across the Northern Irish border. In Kako Nubukpo’s chapter it can be found in an account of how the EU has inserted itself into the definition of what constitutes monetary sovereignty in West Africa, which directly concerns the 140 million people using the CFA franc currency on a daily basis.
1.6.1 Federalism.
The Constitution of the United States and the jurisprudence of the United States Supreme Court is the classic comparison for EU law scholars analysing the federalism of the EU. This is the case even though the formation of the federal system of the United States significantly predates the founding of the EU.Footnote 62 Frederick Cooper has written about the debates over federalism and confederation, which happen contemporaneously to the founding of the EU in the late 1950s within what until 1958 was the French Union and thereafter the French Community, as well as within the Pan-African movement.Footnote 63 Cooper explains that the failure to form a federation in this era of decolonization has been mistakenly attributed to ‘the inexorable drive of people to have their own nation-states, and it is easily forgotten that the nation-state was a fall back option for the leaders most involved at the time’.Footnote 64 The rich debates of this period (predominantly but not limited to the 1950s and 1960s) in Africa, notably among West African political leaders such as Mamadou Dia, Léopold Senghor, and Kwame Nkrumah on the ability of federalism to encompass heterogeneity and multinationality, have so far not been carefully considered within debates about EU federalism. Diamond Ashiagbor’s chapter, however, is an illustrative example of how the debates of the Pan-African movement in the era of decolonization cast light on the workings of the EU today.
In Chapter 6, Diamond Ashiagbor makes this comparison between the EU and the AU’s federated systems, and the ways in which their respective integration processes are interconnected. Ashiagbor’s chapter first shows how the EU’s regional integration project, especially how it ‘embeds that market in the “social”’, owes much to the ‘racial capitalism of European colonial dominance over the territory and resources of other regions’. She describes two processes happening in parallel within European integration, namely, how it has relied on colonial extraction abroad and the ways in which, at home, there were ‘(racial) hierarchies within, or exclusions from, the post-war European ideal of the solidaristic social state’. She then goes on to illustrate the processes through which development of the EU’s social dimension ‘influences and constrains the policy space available for another regionalism project, the African Union, to develop its own version of social regionalism’.
1.6.2 Sovereignty.
The sovereignty question in EU law has always been a challenge to its legal theory and many have sought to answer what form of sovereignty does the interaction between the EU’s legal system and that of its Member States create. Neil MacCormick summarized the impasse by observing that while ‘sovereignty has not passed to the organs of the Union, the same analysis confirms that sovereignty has not remained with the individual Member States either’.Footnote 65
Examining the place of colonialism in the development of EU law shows that the question of sovereignty is not limited to the interaction between the EU and its Member States, but is also a question of how the EU interacts with former, and current, colonies of the Member States.Footnote 66
‘We know sovereignty when we see it – at least we think we do’, Lauren Benton writes when theorizing the many ‘forms of attenuated and partial sovereignty’ in the long history of European colonialism.Footnote 67 There is a rich literature on the concept of sovereignty in colonial studies. Several of these accounts, like Benton’s, focus on how sovereignty for formerly colonised states was never absolute and never complete.Footnote 68 In the context of decolonization and the attainment of sovereignty of newly independent states, Chatterjee has shown how the very fulfilment of sovereignty became intertwined with the notion of development, as ‘development’ became a standard through which to assess readiness for sovereignty.Footnote 69 Ann Stoler, following the same line of reasoning, writes that it is of importance to ‘[shift] emphasis from fixed forms of sovereignty and its denials to gradated forms of sovereignty and what has long marked the technologies of imperial rule – sliding and contested scales of differential access and rights’.Footnote 70 The role EU law has played, and still plays, in sustaining scaled sovereignty, typical of colonialism and its aftermath, should inform the debates about the meaning of sovereignty in EU law, theoretically as well as practically. A case in point is Kako Nubukpo’s chapter (Chapter 7), which casts light on the role played by the EU in the quest for monetary sovereignty in Benin, Burkina Faso, Côte D’Ivoire, Guinea-Bissau, Mali, Niger, Senegal, and Togo.
Nubukpo’s chapter shows how current EU decision-making continues France’s colonial currency policy in West Africa. The CFA franc is a currency circulating in fourteen African countries divided into two monetary zones in West and Central Africa. Created by France as a currency for its colonies in 1945, in two council decisions taken in 1998 and 2021 the EU first accepted that the CFA franc would be pegged to the euro rather than the French franc, and then increased its own involvement in the future reform of the CFA franc. Thus since 1999 the CFA franc has been pegged to the euro. The French Treasury guarantees convertibility between the CFA franc and the euro and in exchange the countries whose currency is the CFA franc must deposit 50 per cent of their foreign exchange reserves in the French Treasury. Nubukpo explains the detrimental effect of this regime on the economic and political life of West Africans. The set-up of the CFA franc gives African and European ‘ruling elites advantages in terms of repatriation of capital from the African franc zone to the eurozone’, and ‘eurozone companies established in the African franc zone can easily repatriate their profits to the eurozone due to the guaranteed convertibility of the CFA franc into euros and the free movement of capital between the two zones’. Most importantly, however, Nubukpo explains how to discontinue the CFA franc, introduce a new currency in West Africa, the eco, and in so doing instate monetary sovereignty in the region.
1.6.3 Legal Pluralism.
Sally Engle Merry has explained the many facets of legal pluralism in colonized societies. She refers to legal and anthropological research leading up to the 1970s that theorized the interconnections of ‘indigenous and European law’ in colonial and postcolonial societies as ‘classic legal pluralism’.Footnote 71 What then followed in socio legal research, and which drew on ‘classic legal pluralism’, but took the concepts of legal pluralism to non-colonial settings, she describes as ‘new legal pluralism’.Footnote 72 Despite the existence of this rich scholarly tradition, in the theorization of legal pluralism or constitutional pluralism in EU scholarship, it is rare to find a comparison or reference to the legal pluralism of colonial societies.Footnote 73 This is the case even though the links would appear to be manifold because the Member States that are former or current colonial powers orchestrated and participated in the plural legal contexts constituted by colonial law.
Lauren Benton and Sally Engle Merry have identified how the legal pluralism of colonial contexts explains global legal ordering and the distribution of power, historically and today. For Merry, the legal pluralism of colonial law provides ‘a framework for understanding the dynamics of the imposition of law and of resistance to law, for examining the interactive relationship between dominant and subordinate groups or classes’.Footnote 74 In Benton’s explanation:
The architecture of the plural legal order had simultaneously a discursive importance – it was […] the object of continual struggle over definitions and markers of cultural difference – and a structural dimension that acted to shape and constrain political and economic interactions. Further, this double-sided quality of conflicts over the relation of multiple legal authorities reproduced knowledge about power that carried across both internal and external borders.Footnote 75
Stephen Coutts’s chapter (Chapter 14) shows how a colonial plural legal context can iterate and transform over long periods of time through the very specific example of the effects of the United Kingdom’s exit from the EU (Brexit) on Northern Ireland. Brexit, Coutts explains, revealed how EU law had worked to facilitate the ‘resolution of a postcolonial conflict with cross-border dimensions, which had persisted until the end of the last century in the north-west of Europe, namely what were known euphemistically as “the Troubles” in Northern Ireland’. Coutts explains in detail how single market law ‘provided the context within which a postcolonial conflict with cross-border dimensions could be managed’. The post-Brexit law then, in Coutts’s analysis is an ‘imperfect substitute’ that lays bare yet another ‘form of legal pluralism or even legal entanglement’.
In Coutts’s account, and through the work of Merry and Benton, the concept of legal pluralism shows that colonial law and its aftermath is not one-sided. In a colonial or postcolonial context the concept of legal pluralism clarifies how there might be more than one answer to the question of who is subjugated and who is ruled, or how power is distributed through law. In Coutts’s chapter, in contrast to many of the other accounts of the relationship between EU law and colonialism in this book, EU law serves the function of reordering a (post-)colonial situation to the point of lessening its tensions and ameliorating its power structures.
1.6.4 Citizenship.
In this book, as discussed in Section 1.5, there are several examples of people being governed by different generations of EU law without being granted equal treatment. The individuals in these examples are subjected to EU law through current or past colonial relationships with Member States. Several of the chapters show the ambiguity of the legal status of these individuals due to their not being straightforwardly included in EEC/EC/EU law as citizens or as nationals of a Member State, nor categorized in EEC/EC/EU law as a third country national.Footnote 76
Accounts of colonial differentiated treatment of people calibrates the story of how and in relation to whom EU citizenship rights have developed over the decades. It casts light on those who have been excluded from its protection. EU citizenship proper, which was introduced in the Maastricht Treaty in 1992, at its core guarantees the right to vote in local elections and to move and reside within the EU without being discriminated against based on nationality.Footnote 77 Before the Maastricht Treaty and since the Treaty of Rome, the right to move without being discriminated against based on nationality was granted solely to those who had the status of worker. In their respective chapters, Karim Fertikh (Chapter 4) and Lionel Zevounou (Chapter 5) show examples of how national and EEC/EC/EU protection offered to workers has been grafted on to colonial distinctions between workers considered racially and ethnically European and workers not so considered. In her chapter, Diamond Ashiagbor (Chapter 6) explains how ‘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’.
These three chapters show how the legal developments culminating in EU citizenship intersect with examples of how individuals subjected to, or citizens of, Member States due to colonialism have been treated differently based on race and ethnicity. The legal technique sustaining such difference in treatment relies on scaled or hierarchized citizenship or nationality status, which is typical of colonial legal systems and in particular of colonial citizenship laws. In this book, the racial hierarchies central to colonial law are a recurrent point of reference. For instance, in Chapter 10 Véronique Dimier describes the colonial legal system in which future EEC Commission public officials were trained as, ‘within the same territories, two legal systems coexisted, tailored for two distinct populations and delineated along racial lines’. In Chapter 12 Amel Benrejdal Boudjemaa writes that as a newly decolonized state, ‘Algeria was unable to perceive its relationship with the Europeans as anything other than a different form of colonialism, especially in the realm of workers’ rights. It must be remembered that under colonial rule, Algerian workers did not enjoy genuine equal rights alongside the Europeans.’
In relation to colonial citizenship laws specifically, Emmanuelle Saada and Bronwen Manby have both explained how the main legal technical commonality was that only white Europeans possessed both citizenship and nationality status.Footnote 78 Though citizenship laws of the colonial era are divergent and opaque, they tended to be organized so that people from the colonies who had citizenship in the European colonizing state were excluded from being considered to hold the nationality of the colonizing state. When people from the colonies were designated as a nationality, such as ‘French’ or ‘Belgian’, it was not as citizens with rights to equal treatment but, rather, as subjects of France and Belgium. Zevounou’s chapter shows precisely how nationality can be used to differentiate between citizens or workers governed by the same state and as Ashiagbor writes in dialogue with Zevounou’s research: ‘[S]uch 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.’
Acknowledging the impact of colonialism on citizenship rights in Member States, and by extension on the protection offered to workers, expands the definition of how citizenship has been organised in the EU since 1957. Including examples of how the ‘rule of colonial difference’ has permeated legal developments culminating in EU citizenship clarifies who has been included and who has been excluded from its gradually enlarged protection over the decades.
1.7 Law, Actors, Exits, and Futures: Introducing the Sections of This Book
Most authors in this book met in Copenhagen in September 2022 for the conference Colonialism and the EU Legal Order. The themes discussed earlier, of how to identify colonial continuities in EU law, how to understand the present application of EU law through the history and practice of colonialism, and how EU legal theory and concepts can benefit from being framed by the context of colonialism, were already present during the conference proceedings in 2022. As the reader of this book will notice, while using different case studies, most chapters combine several of the themes, questions, and approaches discussed in this Introduction.
The book is divided into four sections reflecting the different case studies used by the authors to analyse the relationship between colonialism and the EU legal order. First, the book opens with eight chapters that concern colonialism and different areas of substantive EU law. This section features Marise Cremona’s chapter on direct effect and external trade (Chapter 2); Daniela Caruso’s chapter on the Common Agricultural Policy and trade with Algeria (Chapter 3); Karim Fertikh’s chapter on the free movement of workers and social security (Chapter 4); Lionel Zevounou’s chapter on workers’ rights and discrimination based on race (Chapter 5); Diamond Ashiagbor’s chapter on EU labour and social law (Chapter 6); Kako Nubukpo’s chapter on the European Central Bank and the governance and reform of the CFA franc currency (Chapter 7); Veronica Corcodel’s chapter on migration law (Chapter 8); and Janine Silga’s chapter on EU development policy (Chapter 9).
The second section contains two chapters that investigate the links between colonialism and actors in EU institutions. This section features Véronique Dimier’s chapter on actors in the EU Commission (Chapter 10) and Michel Erpelding’s chapter on actors in the CJEU (Chapter 11).
The third section contains three chapters that analyse exits from the EU and how the history and aftermath of these exits relate to colonialism. This section features Amel Benrejdal Boudjemaa’s chapter on Algeria’s exit from the EEC (Chapter 12); Ulla Neergaard’s chapter on Greenland’s exit from the EC (Chapter 13); and Stephen Coutts’s chapter on Northern Ireland’s exit from the EU with Brexit (Chapter 14).
The fourth and last section contains two chapters that look towards the future and address the question of how we build on the knowledge and scholarship concerning the interconnections between EU law and colonialism. This section features Antoine Vauchez’s chapter on the effects and function of the emerging field of EU law and colonialism (Chapter 15) and Iyiola Solanke’s chapter on how to decolonize the research and teaching of EU law (Chapter 16).
Hopefully, the reader of this book will notice cross-cutting themes and appreciate the incredible nuance and specific context of each individual chapter. The editorial ambition has been to present an eclectic yet harmonized selection of texts that together form a critical reflection on EU law’s relation to colonialism. Ultimately, this book is intended to be a constructive part of analysis and debate about the history, present, and future of the EU legal order.
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