EU Lawlessness Law: Europe’s Passport Apartheid From Indifference To Torture and Killing

Jean Monnet Working Paper No 2/2022 (NYU Law School)

94 Pages Posted: 6 Jan 2023 Last revised: 6 Feb 2023

See all articles by Dimitry Kochenov

Dimitry Kochenov

CEU Democracy Institute, Budapest; CEU Department of Legal Studies, Vienna

Sarah Ganty

Yale Law School; Ghent University - Faculty of Law; Central European University

Date Written: January 2, 2023

Abstract

We take a close look at the most important legal techniques deployed by the European Union to make sure that the whole spectrum of denying non-citizens rights – from dignity to the right to life – is never presented as a violation of EU law even in the cases when dozens of thousands are hunted and detained by proxies while the Mediterranean has been turned by EU’s and Member States’ incessant efforts into a mass grave. Making this possible is the work of what we term ‘EU lawlessness 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. To present a complete picture of EU lawlessness law, we delve into the treatment of non-Europeans both inside and outside the Union. The core principle is always there and it is the principle of passport apartheid. In the EU, there is usually no need to break the law to deny the foreigner crucial rights: apartheid européen works well from the internal market to the Belarusian forest and an EU-funded Libyan prison for the innocents, who committed no crime. This contribution elaborates on this starting point using two examples: the near complete exclusion of non-EU citizens from the fundamental freedoms in the EU from the inception of the Union; and the pro-active stance of the Union and the Member States in ensuring that the right to seek protection in the EU is turned into an unworkable proclamation. EU lawlessness law is always on the side of the Union and we outline a spectrum of injustice to showcase different instances of how EU’s legality enters into direct conflict with the Rule of Law to denigrate non-Europeans. Money matters – and the EU Emergency Trust Fund for Africa emerged as a reliable and unaccountable purse for EU lawlessness law. Acting either directly, or by proxies in the fog of its lawlessness law, the EU can torture, kill, imprison and enslave and it does so mostly targeting the racialised people from its former colonies. FRONTEX, an EU agency, is at the forefront of stripping non-Europeans of rights. The atypical nature of the Union as an ideal type of passport apartheid with a complex legal structure imparting invisibility on non-citizens, while deluding responsibility and boasting no effective accountability structures for more than 25.000 drowned and 100.000 captured in the Mediterranean, as we will show, has been served well by own lawlessness law. The passport apartheid core of the punishing EU legal system is significantly undertheorized and this paper aims to start bridging the gap between the day-to-day reality of outright exclusion of non-citizens from dignity and the law and EU’s billions invested alongside countless other incessant efforts to promote lawlessness on the one hand and the lack of accountability and the numerous proclamations about the Union's equitable value-laden nature on the other.

Keywords: EU Law, Lawlessness, CJEU, apartheid, migration, pushbacks, frontex, racism, citizenship

Suggested Citation

Kochenov, Dimitry and Kochenov, Dimitry and Ganty, Sarah, EU Lawlessness Law: Europe’s Passport Apartheid From Indifference To Torture and Killing (January 2, 2023). Jean Monnet Working Paper No 2/2022 (NYU Law School), Available at SSRN: https://ssrn.com/abstract=4316584 or http://dx.doi.org/10.2139/ssrn.4316584

Dimitry Kochenov (Contact Author)

CEU Democracy Institute, Budapest ( email )

Nador utca 9
Budapest, H-1051
Hungary

CEU Department of Legal Studies, Vienna ( email )

Quellenstraße 51
Vienna, 1100
Austria

Sarah Ganty

Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

Ghent University - Faculty of Law ( email )

Universiteitstraat 4
Ghent, B-9000
Belgium

Central European University ( email )

Hungary

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