by: Sarah Ganty & Dimitry V. Kochenov
ABSTRACT
The European Union (EU) deploys a number of legal techniques in an effort to make sure that virtually no denial of racialized noncitizens’ rights–across the spectrum from equality and dignity to the right to life–is ever presented as a violation of EU law, even as the death-toll climbs to the dozens of thousands, turning the Mediterranean Sea into a mass grave through the EU’s and Member States’ incessant efforts. Making this possible is the work of what we would term “EU lawlessness law”: a careful summoning of diverse legal techniques to make basic accountability and the protection of the rights of the racialized passport poor impossible by creating a shield of impunity against the application of international, national, EU and ECHR rights, values, and principles in a principled breach of the spirit–but not the letter–of EU law. We explain how EU lawlessness law operates, how the EU pays for it, how it passes legal scrutiny, and what its objectives are. We outline why it is a grave violation of EU values and why deploying legality to ensure that the most significant rights are turned into fiction is an affront to the Rule of Law. In the EU, there is usually *79 no need to break the law to deny a foreigner her crucial rights: apartheid européen is an essential feature of EU law, from the internal market to the Belarusian forest and the Mediterranean, where the EU’s proxies–such as the so-called Libyan Coast Guard–are hunting, torturing and imprisoning by now more than 120,000 racialized innocents. This contribution elaborates on this starting point showing the evolution over the last decades from passive rightlessness to active criminality, committed with full impunity under the aegis of EU law. The rightlessness of the “other” is achieved through the near complete exclusion of non-EU citizens from the fundamental freedoms in the EU dating back to the colonial inception of the Union. Lawlessness sensu stricto is the next step. It stems from the proactive stance of the Union and its Member States towards ensuring that the right to seek protection in the EU is turned into an unworkable proclamation where any means are acceptable to guarantee that the law on the books does not apply to the racialized passport poor at the EU’s borders, resulting in unspeakable suffering and a huge death toll. Systemic lack of accountability–legal, as well as democratic–ensures that the EU lawlessness law always favors the Union, never the victims. This paper aims to start bridging the gap between two extremes. On the one hand, there is the day-to-day reality of the outright exclusion of non-citizens from dignity and the protection of the law, backed by the billions the EU has invested alongside countless other incessant efforts to promote lawlessness and a lack of any accountability in targeting the racialized passport poor at EU’s borders and further afield. On the other hand, there are the numerous proclamations about the Union’s equitable value-laden nature.
* JSD candidate and President of YLS European Law Association, Yale Law School, New Haven; FNRS Post-doctoral Fellow, Université Catholique de Louvain, Louvain-la-Neuve. This research was supported by the FWO postdoctoral grant at Ghent University.
** Head of the Rule of Law Research Group and Founder of the Rule of Law Clinic, CEU Democracy Institute, Budapest; Professor of Legal Studies at CEU Department of Legal Studies, Vienna; Visiting Professor, LUISS Guido Carli, Rome. The assistance of Rohit Sarma is gratefully acknowledged.
Published in CJEL Vol. 30 issue 1.
Read the full article on HeinOnline, Lexis, or Westlaw. Interested in receiving the Columbia Journal of European Law in print at your university or office? Please contact our Executive Editor at ee.cjel@law.columbia.edu.
Also published in Vol. 30 issue 1:
EU Abortion Law After Dobbs: States, The Market, and Stratified Reproductive Freedom, by Ivana Isailović
A Right to Encryption in the European Union’s Charter of Fundamental Rights, by Peter Davis
The Prospects and Perils Of US-EU Comparative Constitutional Law: An Interview with Koen Lenaerts, President of the Court of Justice of the European Union, by Justin Lindeboom
