Colonial Roots and Continuities in Europe’s Migration System – In Conversation with Janine Silga

[Music] Hello and welcome to the latest Rev. them Rule of Law podcast. My name is Constantine Kip and our guest today is Professor Janine Silger. When the first treaties that laid the ground worked for today's European Union and the European Convention on Human Rights were signed up to the Second World War, many of today's member states were still significant colonial powers, empires. It was only in the years that followed that these European empires eroded and many countries in the global South gained independence. However, while colonialism formally ended, many have argued that coloniality has persisted. Although it is applied to different areas, one of the most important is migration governance. Here European countries have been accused of replacing explicitly racialized mechanisms with a facially raised neutral apparatus that nonetheless constitutes a system of neo-colonial racial borders that benefits some and disadvantages others. Janine Silger is an assistant professor in European Union law at the School of Law and Government at Dublin City University. First of all, thank you for being here with us today Janine. Thank you very much Constantine. It's my pleasure to be here. Thank you for having me. So, before we start talking about how coloniality has persisted in Europe's migration system today, I first wanted to ask about migration during the time when colonial empires still existed. It seems that at least for some time during this period migration governance was very different from what it is today. Aside from obvious factors like technological development, immigration in the mid 19th century was practically unrestricted across, for example, the British Empire. Now, this was of course not due to a European belief in the right to freedom of movement but rather to the demand for labor. Initially, enslaved people and later cheap laborers from the colonies. Nevertheless, I wanted to ask if you could talk a bit about how migration worked throughout this period. What was similar and what was different compared to today? And why did Europeans adopt a more restrictionist approach, even though immigration had provided them with cheap labor for such a long time? Thank you very much for your first question, Konstantin. So, before answering this question, I think that it is very important to be more specific about what we mean or what is meant by the fact that immigration was unrestricted at that time and especially who benefited from this unfettered freedom of movement. And the reason why I want to emphasize this point is that just as you did, it is also very important not to underestimate the force migration of coal-nice people during colonial times, whether as slaves, initially or as part of systems of forced labor or indentured labor within the colonial empire themselves. So, with that being said, in her article, migration has decolonization, Professor Eiton Dietzschu may report that at least 62 million Europeans immigrated to colonial territories across the world between the 19th and the first half of the 20th century. So, this European migrants just as a people who are now calling migrants and who are for the most part coming from this formal colonial possession. So, these European migrants, the chance could be very accurately described as economic migrants. That is, people whose migration was baritid driven and who were moving to improve their livelihood in the same way as present day, so-called economic migrants. This is to be a bit simple in that. Now, as you rightly mentioned, it is also important to keep in mind that a large proportion of this migration was clearly underpinned by the expansion of capitalism. And this has obviously to be paired with colonial expansion and this expansion required access to cheap labor that could be readily exploited. And I want to insist on that to highlight the complexity of what we can now see or regard as free movement. In other words, this movement of European economic migrants was to large extent caused by overwhelming economic forces which were not controlled by the people concerned. Now, and this is where the situation of European economic migrants at that time differ from the situation of economic migrants. Now, this European immigration, therefore their immigration into formal colonial possessions, did not experience the same level of restriction, of legal restrictions, as current economic migrants on the contrary. In fact, this is probably the most important point. It is precisely when non-white migrants, and especially migrants or people coming from Asia, started to immigrate to, or wanted to immigrate to settler colonies essentially, that is the US, but also Australia as economic migrants, so to say. So it is precisely at this moment that the internationally-gunned doctrine started to shift from a regime of relative free movement to a regime of restricted migration. And this doctrine was especially consolidated at the end of the 19th century by the US Supreme Court, the part of the so-called Chinese exclusion cases. And this line of caselo actually erected as this expression itself indicates an exclusive conception of sovereignty or what a human and other scholars have called a conception, an absolutist conception or understanding of the notion of a state sovereignty. So concretely, this has translated into the right in inverted commas for a state to exclude a priori in non-national from entering their territory. And it is important to stress that, that is, it is still the prevailing understanding that we have of state sovereignty, current understanding of state sovereignty that we have, that is operationalized today as part of our contemporary immigration policies, especially in Europe. Thank you very much, Jenny. So now the period spanning the late 19th century and the early 20th century appears to mark a pivotal moment. And you've already mentioned it that Western states started to be more restrictionist and began laying the foundations for a border regime that enabled racialized control over access to the benefits of colonial exploitation. So you've already started with this a bit, but could you explain a bit more the key concepts and mechanisms developed during this time that then later evolved into tools for implementing today's global bond and migration control systems? Yes, of course. So as I briefly mentioned before, we first have this understanding of national sovereignty whereby states are entitled or have this right in inverted commas has to exclude foreigners from their territory. So this is certainly the main prerequisite and the starting point of development of further racialized exclusionary mechanism that are now sealing European borders to say the least. So stemming from that, stemming from this absolutist conception of sovereignty, we can also mention citizenship obviously, which also tends to be seen as reflecting a legitimate rights of states to choose who is to be a member of their national community and by exclusion who is not to be a member of their national communities. So now to focus a bit more on Europe and focus even more on the EU within the framework of, within the legal framework of EU citizenship, national citizenship as probably you know and many other people know, national citizenship rather than residence has been adopted as the criterion to define who is a new citizen and therefore who would not be a new citizen. And in this sense, EU citizenship, which is considered to be the model of a super national citizenship, displays in my view a total or almost total deference to the win which EU member states choose their own nationals. And actually, I think that it's interesting and important to know that the court of justice of the EU has relied on international legal doctrine on this, legal doctrine that as we've highlighted, owes a lot to European-Cornian past. And in this sense, when may argue that EU citizenship is a direct legacy of European-Cornianism because the colonial conception of citizenship has not been unsettled in any major way by the creation of EU citizenship. So to mention now a bit of a few more examples of those officially race neutral border mechanisms or technologies, I think that we also have the very notable invention of the Passport. So this is to borrow from the title of John Torpys, the invention of the Passport, well-known books. And then further develop that and I'm summing it up in a very important article on that adopting, I think, a twin approach, third-ball approaches to international law on that. So the invention of the Passport has provided for a universal way of identifying people who are traveling internationally. And later on, the possession of the Passport was no longer enough. So this is to make the story very simple of course. And this is where the majority of the world population has now been required to be in the possession of a visa. travel internationally. And the visa literally formalizes the authorization that is required from at least sub foreigners to enter a state. And the next example of such a Bises scheme is the so-called Shangan visa, which requires the current nationals of most former European colonies to be in a possession of this visa to be able to travel to the Shangan countries, which are obviously all European countries. As a final example, but a major one in my view, so I really want to emphasize on that, I would also like to mention the very concept of migration status or immigration status, which categorizes legally individuals into somehow inadequate and probably outdated legal statuses. So this would be the case for the category of refugees. And there has been a growing scholarship challenging the legal category of who is a refugee, as conceptualized by the 1951 Geneva Convention, for example, or we can also mention all the very diverse subcategories of migrant workers. So just to name a few of them, we can mention seasonal workers, irregular workers, highly skilled workers, researchers and so on so forth. So there is actually a never-expanding diversity of the legal categorization of migrant workers of the category migrant workers, which is yet to be fully captured by the current post-colonial and/or indecolonial critique. So in my view, I would say that even more research is needed at this time when it comes to debunking the facial erase neutral dimension of all these legal statuses and more. Thank you very much, Danny. So now to talk about today's migration governance and the legal documents that accompany it, exclusionary decisions based on race remain evident. For example, when it was signed in 1950, the European Convention on Human Rights still an important document for migrating people today included a so-called colonial clause that allowed contracting states to exclude its application to their then-still existing colonies. Analyzing the Treaty of Rome from 1957, scholar Hannah Eklund has argued that Eulaw from the outset aimed to ensure its beneficiaries were ethnically and racially European. A later example of discrimination is the Eul's Shangan visa regime, which operates with two lists of countries, one of which initially referred to as the blacklist consists mostly of formerly colonized states whose citizens face substantially more obstacles when trying to migrate than those from the whitelist. So as an Eulaw scholar yourself, I wanted to ask for your perspective on how the used current legal system but also the European Convention on Human Rights might consciously entrench existing racial inequalities or even contribute to further discrimination. Thank you very much for this question, Konstantin. So just to start, I would say that more than consciously I would rather say that these systems are structurally untranslatable existing racial inequalities. This means that while the intention to perpetuate racial discrimination might not necessarily be clear in the sense of explicit, it is in my view actualized and re-actualized by not questioning or by not challenging the structural factors which are allowing this racial discrimination to persist. So in the context of Eulaw migration law, this is materialized by taking from granted all these different border technologies or the different infrastructure. So this is to borrow from Ed Shumei or also from a scholar, a Thomas Pickerbohr which brought pitch weight racial discrimination as I briefly described before. So now to answer your question more directly, I would say that the very first way in which the illegal system and perhaps to a lesser extent, though the system of the European Convention on Human Rights or Failing to properly address racial discrimination is by endorsing and they do so either indirectly or indirectly, this assortmentist and therefore exclusionary interpretation of state sovereignty. To be clearer on that, both systems and doors to a variable extent, the understanding that states are for the illegal system, the EU have a right to exclude, that is, the state is assumption of contemporary international migration law that is going by Catherine Costello. This means that the right to exclude foreigners which is to be regarded as a parallel to the principle of immigrant selection is not typically understood as a form of racial discrimination. I think that this is very important. On this constitutes the so-called migration exception to borrow from David Finley and Kylen Murphy. And this migration exception explains to a very large extent why human rights law, at least in the European context, has failed to address racial discrimination when it comes to national or migrants, the rights of migrants in a way that is completely, that is, adequate or inconsistent. So in those specific contexts of the C.H.R., the smell of the European Convention on Human Rights, this is what Mary Benedic Dombu has identified as a stress-burg reversal. When it comes to human rights and the sense that the European Court of Human Rights, the C.H.R., in the south of Gorns, places the right of states to exclude above the right of migrants as humans. And what I find remarkable in our analysis is the fact that she clearly contrasts this stateist approach of the C.H.R., or the stress-burg reversal as she calls it, to which she calls the "poll-min-e" approach of the entire American Court of Human Rights. When it comes to migrants, human rights. So they really formulate this notion whereby there is a Yusko Gans principle of non-discrimination that would apply to all migrants, including those migrants in a regular situation. So in other words, what she means by that is that there is not our interpretation of the law that is possible. We are not condemned to interpret the law that we have, even if it is positive, low in a way that is always the same. So now to go back to the U Context, more precisely, and to be more specific about how the Court of Justice of the U has not been addressing racism in the context of migration, the current state of the case, though, is underwhelming to say the least. And at least on two occasions, the Court of Justice has refused to discuss how the differential treatment of non-Eunationals or third-world country nationals in the U.D.G. terminology could potentially constitute racial discrimination. So this was first in the Combehage case of 2012 and more recently in the case, along about the rise of 2021. So now it is true that the position of the Court of Justice reflects positive law, that is, the race equality directly essentially, and to a lesser extent, the chart of fundamental race and the treaties themselves. So we might argue that the Court might have a more limited room for maneuver when it comes to interpret this law, this positive law that it has in its hand. But that being said, I would like to finish my answer on a more hopeful, more positive note. Because at the moment, there is a pending case before the Court of Justice on the so-called Danish Gate Fellow in inverted commas, which aims to reduce the proportion of public housing in certain neighborhoods, which are characterized as long-term so-called parallel societies or formerly ghettos, counting more than 50% on here I quote, immigrants and their descendants from non-western countries. In our opinion, on this case, it was delivered in February of this year, at the edge of general Pemahar, Chapeta has argued that the Court of Justice should interpret this initiative as direct racial discrimination. So now I do not know what the Court will eventually conclude on that, but the proposition of advocate general Chapeta really stands out in my view as a very promising way of calling out the racism faced by the people we call migrants. And obviously, there are descendants. Thank you very much. So now I wanted to reference a very important scholar in this field that you also already mentioned. Professor Tendaifuma argues in one of her pieces, titled "Dracial Borders" regarding 26 Nigerian girls who drowned in the Mediterranean in 2017, that their blackness is a determinant in their death and that the latter is a predictable outcome of a system of neo-colonial racial borders. Professor Tendaifuma criticizes the broader discourse regarding such deaths for often addressing the brutal conditions of migration, for example, through criminal smuggling, while ignoring the underlying logic of racial discrimination. Professor Tendaifuma refers to this ignorance or unwillingness as racial effagia. Could you explain to our listeners what exactly is meant by this term? What lies behind the unwillingness to confront these topics that according to Professor Tendaifuma seems to go far beyond politics, but even into academia? Thank you very much for this very important question, because Tendaifuma also far referencing the Arctic or racial borders by Professor Atchoume. So now to answer your question, and I will try to do that in a way that is that will be as clear as possible, I hope. So if we go back to the etymology of this world, effagia, effagia literally means without speech or speechlessness. So in the common language, effagia actually is a language disorder, which from what I understand of it, so this is to be taken with the brain of salt, effects, communication in general, that is not only the ability to speak or to. express oneself but also the capacity to understand other people. So in the context of racial borders, I assume it probably uses this term in a more metaphoric way, but I would say that the choice of this specific word, rather than another word, in my view, reflects the tangible reality of the overwhelming silence that surrounds the notion of race, at least in the European context. So in this sense, the reference to aphasia that is disorder and existing disorder rather than simply a reference to silence. In my view, signal, the clear intention of the author, not to consider this silence as a normal state of being and ready to call it out. So in light of that, I totally agree with you. So I also think that Professor Tumay's article is a direct invitation to the academic community to be more precise, to legal scholars in general, and to legal scholars working in the field of migration in Europe in particular. So this is a clear invitation from Professor Tumay to move beyond this racial aphasia in their analysis of migration law. And in this sense, and I think that this is also what is so distinct about her article and about our scholarship in general, she not only tackles this aphasia concretely by making race the center of our analysis in racial borders, but she also directly confronts the limits, the limitations of legal positivism as a traditionally-going methodology. So now, with that being said, and to answer a question a bit more indirectly, it is difficult to pinpoint with very much precision what lies behind the unwillingness to confront the racial aphasia of migration law, and especially of you, migration law. But I would say that we cannot exclude, so we have to include, in other words, the discomfort of dealing with race, which is an emotional trigger for many Europeans and very understandably so. And I would also add in connection to that, that this discomfort is directly connected to the intellectual discomfort of dealing with methodologies and even of engaging with scholars and scholarships with which one is not familiar. But to refer back to the example that you quoted of the 26 Nigerian girls who drowned in 2017 in direct time to cross the Mediterranean Sea, this legal disorder or this racial aphasia, as mentioned by a human other scholar, is very costly, so not only very tangibly in the best, the actual best of people in their time to cross international borders and to reach a European territory. But it is also very costly because it creates from the psychological point of view, if I dare to say so, a wide range of cognitive differences, which are in measuring more uncomfortable, even more uncomfortable, and which should prompt us to finally confront another very uncomfortable truth about the actual role of immigration law in this context. So this would be maybe my tentative answer to your question, Constantine. Now, well, the work we've referenced so far is based on the recognition that the formal end of colonial states did not end coloniality, but rather that a hierarchical classification of populations according to a Eurocentric standard has persisted through neocolonialism. This work still is far from being fatalist. In contrast, it has developed the colonial theory as a counterpart to coloniality that refutes the myth of modernity promoted by the global north, especially by Europe, which elevates itself above countries from the global south. While the colonial theory has been proposed as a tool to overcome coloniality in EU legal studies, it extends well beyond the legal sphere. So this is, of course, a broad question, but could you explain to our listeners what the coloniality entails? Thanks for your question. Begin with, but at the starting point, as you very rightly mentioned, I would say that decoloniality is a very broad concept that is very difficult to capture in all of its complexity and definitely not all at once. So in this sense, I think that it's important to keep in mind and not to see decoloniality or the current decolonial movement as a monolith, so it's important to keep in mind that this is not a monolith or a monolithic way we are thinking. So now to try and to be as brief and as clear as possible, I would start by saying that as an intellectual movement, decoloniality was initiated by Latin American scholars and at the forefront of those scholars, we must mention any Belk Hamel to whom we owe the conceptualization of coloniality as the starting point of decolonial thinking and its further theorization as a result. So in a literal sense, I would define decoloniality as a departure or the dealing king to borrow from decolonial thinkers from coloniality, so this is quite simple. For this reason, I think that coloniality really constitutes the conceptual anchor of decoloniality. So as broken down by another scholar, Ihano, as identified four dimensions on levers of coloniality which are first, the control of the economy, second, the control of authority, third, the control of gender of sexuality, unless but not least, the control of knowledge and subjectivity. Another crucial point to keep in mind when it comes to how coloniality expresses itself in contemporary migration laws and policies relates to the clear identification by decolonial thinkers of race as an organizing principle of coloniality. So this is once again to borrow from Glovo Gatcini and this organizing principle of coloniality in the words of Glovo Gatcini not only horror cases, human beings, but it also sustains not only asymmetrical global power relations, but also a singular Eurocentric epistemology that claims to be universal, disembodied, truthful, secular and scientific. So this quote is very important in my view because it really centers epistemic decolonization in decoloniality that is broadly speaking, the decolonization of knowledge and knowing. So while decoloniality shares a lot of similarities with post-coronialism, especially in their shared effort of epistemic deconstruction, I would argue that the particularity of decoloniality stems for its more radical departure from coloniality and perhaps also from its effort to reconstruct concepts by fully breaking away from a cornyality, that is what decolonial thinkers conceptualize as epistemic reconstruction. And in this sense, decoloniality aims to be more than an intellectual endeavor. It's more than an intellectual effort and intellectual extents to all spheres of life and actually all spheres of life, whether they are human or not. So there would be many eucalyse-smansion who are currently axiom-vanguaging with decoloniality, but to restrict myself just to legal scholars, we can probably mention the well-established third world approaches to international law, that is legal echo to both post-coronialism and more or something to decoloniality in their conversations sometimes with eucalyse-smansion. In the context of euloid self, to an addition to a scholar, to a Muir indirectly referring that it is Jennifer Londo-Setting, we can also mention the ongoing project by Professor Arquil Estolante on decolonizing euloid. In relation to eumagration, it would be more precise and in addition to, as you see, the scholarship of Professor Arquil Bay, I would also like to mention a recent article by Veronica Corco del, in which it presents a decolonial agenda for eumagration and the silent law, and in which it actively challenges the epistemic foundations of eumagration and silent law from a decolonial perspective. So I think that this is a crucial read for anyone who would like to know a bit more about the current state of the scholarship on decoloniality in conversation with eumagration law. So now for my last question, I want to focus on a concrete proposal to overcome the current racialized migration system, put forward again by Professor Arquil M. Criticizing the common understanding of sovereignty that allows states to exclude non-nationality, Professor Arquil M. argues for viewing migration as a form of decolonization. While much of the European discourse focuses on excluding people that are on the move for economic reasons, she contends that these individuals, in fact, have strong claims to national admission in the global north. Rather than being seen as engaging in legal border crossings, economic migrants should be understood as political agents exercising their rights to equality. So you've already mentioned this article of Professor Arquil before, but could you explain a bit further the legal arguments behind the concept of migration as decolonization? And then even more, while the current public discourse might be pointing in a different direction, do you have hope that such arguments will eventually be recognized and caught? Thank you very much for those challenging questions I have to say. It's a challenge actually to summarize, I would say, the article or the proposition made by Professor Arquil M. Migration and Ezekolization that I will try to be as clear and brief as I can. So in this piece in our immigration as decolonization, at Schumé Artie relates a full reflection on how we may consider migration as a way to achieve individual self-report. determination in a neo-colonial order that is basically in a legal, political, and economic order in which the legacy of colonialism is still present and in which genuine decolonization was not achieved after formal decolonization. In the sense, Shume is very clear about what she defines as decolonization in our article and to quote her, "This personal pursuit of enhanced self-determination, which assorts political equality with first world citizens, is decolonial, it is migration as decolonization." So she's quite clear and I would say pragmatic in the way in which she describes this notion, this concept of migration as decolonization. Now on the side note, I'm just to give a bit more precision about the terminology that she uses. For I saw Shume understands the notions of first world and third world in their political sense, as defining respectively former European colonial powers, including settler colonial nations such as the U.S., Canada, and Australia, and the former colonies of the first world as the start world. Now to give a bit more details on our reasoning on our precise reasoning in migration as decolonization, as Shume departs from the fact that although irregular migration is often depicted as being economically responsive, it is also politically responsive in the sense that freedom of movement is politically determined and racially differentiated. And it is in this sense that she refutes the opposition that is very often in a very simplistic way made between economic migration on the one hand as being essentially economic and asylum as being essentially political. And for this reason, in our piece in migration as decolonization, the objective of the author is really, I'm here I put her once again, to reframe migration, even a third world migration that we are contemporarily characterizing as irregular migration, as when compelling means of a starting individual agency of political horizons and to argue for the formal recognition in the law of this expression of agency. So to achieve this result, a professor at Shume concretely advocates grouting first world equal citizenship to people of the start world as a matter of corrective distributed justice. And he I just wanted to mention the work of two political theories on which she really, the answer poem, who are Simon Gati and Alicia Nute, so I won't say more on that, but I think it's important also to stress on the importance of their work, the argumentation, the reasoning of professor at Shume in migration as decolonization. And one thing which is particularly interesting in this article is the fact that in migration as decolonization, professor at Shume directly challenges the so-called rights of state to exclude non-mationals by questioning the prevailing absolutist conception of sovereignty. And it is in this sense that she understands the first and the third world as being de facto co-sovereigns of what would be present in the neo-colonial empire or neo-colonial empire system and on that basis she argues for the reformation of this unequal political association, that is the neo-colonial empire, rather than its severance of this, the severance of this political association as the way to contribute to self-determination and genuine independence. So this is for a very, very brief overview of what I understood of migration as decolonization. Now about your second question, to be the very honest with you, I do not know whether such arguments will eventually be recognized by courts, but I most certainly hope so, especially when it comes to challenging our current understanding of what sovereignty means and of the way in which it is used to exclude non-mationals, especially non-mationals or nationals coming from former colonel colonized states, also that there are non-western, formerly colonized states. In any case, I think that we should not underestimate the crucial importance of the current intellectual and also political turning point in which we are right now. And in light of this, I would say that any voice and any action that is questioning the status quo is important and precious for that matter. So I'm too cold, I'm so, once again, and for the last time, I would say that presence is resistance. I strongly believe that there is no effort that is too little when it comes to overcoming the colonial legacies in low-in general and especially in new migration law. So personally, I am observing that there is an increasing awareness of the use of the New Scaling community and on a beautiful scholars, especially of the need to debunk the legacies of European colonialism. And what I find to be even more promising and hard-worming to be honest is also the genuine interest, the openness to the current colonial turn of a younger generation of scholars, such as yourself. And in this sense, I really appreciate the conversation that we are having today. So just as a very final word, perhaps this scholarly argument will not have an immediate impact on the core of decision, but I would say that as long as we keep working the right direction as a scholarly community, this is something which I definitely do not take for granted. So as long as we keep doing the work, I see many more reasons to be hopeful than not to be hopeful. Yeah, Jeanine, thank you very much for these very, very nice words and also in general for this great discussion. Thank you very much, Constantine. It was my pleasure to be in conversation with you. Thank you very much again. Thank you. I want to encourage our listeners to follow them on Blue Sky, LinkedIn and Instagram to continue engaging with similar discussions in the future. Until the next time.