Statelessness and Roma Communities in the Czech Republic: Competing Theories of State Compliance

Linde, R (2006). Statelessness and Roma Communities in the Czech Republic: Competing Theories of State Compliance. International Journal on Minority and Group Rights. 341. 341-366.


The system of national sovereignty, underpinning international relations in the modern world, is one wherein individuals exercise their rights and obligations primarily through citizenship in a state. Holding citizenship in a state willing to extend rights and protections is therefore the de?nitive factor in the exercise of rights, especially human rights. When an individual does not possess membership in any state, that individual is considered stateless. Statelessness is a problem that affects millions of people, and although the exact number of stateless people is unknown, Refugees International estimates it to exceed eleven million.1 While stateless people are found throughout the world, the largest numbers reside in the former Soviet Union, East and South Asia, especially Thailand, Nepal, Burma and Sri Lanka, as well as in Europe, the Great Lakes region of Africa, and the Middle East.2

Statelessness has multiple causes; among the most common are intentional exclusions that limit an individual’s citizenship to that of his or her parents, to place of birth, or to a con?ict between these alternative means of citizenship conferral. States may also revoke or refuse to grant citizenship when a marriage takes place between citizens of different states or when a state discriminates against individuals on the basis of gender, religion, political opinion or ethnicity.3 Statelessness can also occur because of administrative processes that are unnecessarily complex or because of fees that discourage individuals from applying for citizenship. Finally, statelessness can occur because of a transfer of territory following the dissolution, independence or succession of a state when long-term residents cannot obtain citizenship in the new state.4

States can protect individuals by becoming party to the treaties and declarations found in international law and by respecting their treaty obligations. Foremost among these agreements are the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. Under these and other treaties, states have speci?c obligations to refrain from creating stateless persons. States can also confer citizenship on non-nationals, thus enabling them to participate in the employment sector and national and local politics as well as have access to educational opportunities, the judiciary and healthcare systems.5

This paper examines the Czech Republic’s passage in 1993 of a citizenship law that rendered approximately 10,000 to 25,000 members of the Roma community stateless.6 The Czech Republic, a former satellite state of the Soviet Union, peacefully split from the Slovak Republic with the dissolution of the Czechoslovak Federal Republic (hereafter Czechoslovakia) in 1993, a process known as the Velvet Divorce. Following the dissolution, a new citizenship law came into effect that put steep requirements on individuals who wished to gain or retain Czech citizenship. These requirements included veri?cation of a ?ve-year period of residence, a clean criminal record, and unwieldy fees and administrative procedures. Many argued that these requirements unfairly affected Roma, who were considered Slovakian by many nonRoma Czechs. Many Roma did not have documentation to prove citizenship or residence, had criminal records that prevented successful applications, or could not understand or afford the administrative procedures and costs required by the new law.

Following a string of previous revisions, an amendment to the law in 1999 reinstated the citizenship of the majority of these individuals. This paper examines the full spectrum of factors that led to the 1999 amendment with a special focus on the role of local nongovernmental organizations (NGOs), human rights activists, international pressure, economic policy, and the unique qualities of the post-Soviet world environment. Additionally, two major ideological trends in the Czech Republic will be presented: the 1992–1997 Civic Democratic Party (ODS) era of euroskeptism and the European Society school represented by former President Vaclav Havel and the rise of the Social Democrats (CSSD) in 1998. The Czech case is especially instructive because the citizenship law was written, enacted and revised within a period of six years. Although a number of changes took place during this time period, this paper suggests that not least of these was the accession process to join the European Union (EU) and a general trend in the Czech Republic toward participation in other international and regional institutions, including the North Atlantic Treaty Organization (NATO), the Organization for Security and Co-operation in Europe (OSCE), and the Council of Europe.

1.1. Approaches to State Compliance

The objective of this paper is not to demonstrate the existence of compliance but to explain it. Although the 1999 amendment removed the discriminatory clauses from the 1993 citizenship law and effectively reinstated citizenship for most Roma, it is not immediately evident why the change occurred. This paper will analyse and apply two competing explanations for compliance, interest- and knowledge-based, for why the Czech Republic changed its behaviour and altered its policy. Interest-based approaches suggest that states comply with international norms when it is in their interest to do so, especially when economic gains from compliance are predicted. These theories posit that changes in state behaviour are the result of rational decision making predicated upon the individual utility of self-interested actors, the product of a cost-bene?t analysis whereby states are focused on their own gains or losses.7 Within this calculus, state interests, understood as constant and unchanging, are determined exogenously to interaction with other states. Domestic politics as an explanatory variable is “negligible” in interest-based approaches and its in?uence delimited.8 As such, the minimal, if not absent, role of domestic politics in interestbased arguments results in the expectation that state interests would be consistent across the tenure of successive domestic actors.

Whereas an economically grounded self-interest wields explanatory power in interest-based theories, ideas and identity collectively comprise interest in knowledge-based theories. These approaches suggest that states may alter their policies through interaction with other states in the international system. Interaction with other states, ideas and institutions may affect a given state’s identity regarding its role in the international sphere, which may in turn affect that state’s perception of its interests, thus leading to policy change. In other words, knowledge-based theories are sociological and depart from interest-based theories in assuming a different path to compliance, one wherein identity and interest co-constitute each other. Interests, therefore, are developed within and through interaction with other states (endogenously) rather than preceding interaction with other states (exogenously). As an endogenous theory of interest-formation, these models can account for changes in interests. Moreover, endogeneity often requires theorists to examine domestic politics in order to understand the interplay of identity, interests and ideas.

Thomas Risse and Kathryn Sikkink provide a sociological model of human rights change that suggests that although states may originally alter their behaviour for instrumental reasons, they may internalize the very ideas they once rejected through socialization with other actors in the international system. This may occur in a series of phases that mark a state’s path from violating human rights to compliance with human rights norms and even the institutionalization of those norms. This model recognizes the importance of economic interests but suggests that these interests may not always be suf?cient to explain compliance. A sociological component needs to be added in order to understand fully the motivations behind compliance.

Interest-based explanations for compliance would ?nd evidence to support their models in the greater potential economic gain of membership in European institutions over the economic loss of extending rights to thousands of indigent persons. Since interests are developed exogenously in these models, changes in leadership within a given country would not affect that country’s interests. Interest-based models would be less useful if evidence suggested that compliance could not be explained without reference to ideas, values, or identity or if interests were to shift as a result of changes in domestic-level leadership. Knowledge-based approaches would expect the identity of a state to affect its likelihood of compliance, which can best be explained by these approaches if the role of ideas, shared values and identities were necessary to explain the Czech policy change. If the change in compliance by the Czech government could be explained by reference to economic interests alone, this would seriously undermine the explanatory power of knowledge-based approaches. This paper will proceed with a brief summary of international law regarding stateless persons in order to establish the norms with which the Czech Republic complied. Following this, a detailed case study will be presented regarding the citizenship law and its subsequent amendments. Finally, the case study will be analysed in the context of the observable implications of both interest- and knowledgebased approaches in order to gauge the usefulness of these approaches to explaining state compliance.

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