Privileging the Document

29 October 2003

Claude Cahn

In that auspicious year 1990, on the cusp of a new age, Jürgen Habermas published an essay called "Citizenship and National Identity", premised on the following:

Three historical movements of our contemporary period, once again in flux, affect the relation between citizenship and national identity: (1) In the wake of German unification, the liberation of the East Central European States from Soviet tutelage, and the nationality conflicts breaking out across Eastern Europe, the question concerning the future of the nation-state has taken on an unexpected topicality. (2) The fact that states of the European Community are gradually growing together, especially with the caesura that will be created when a common market is introduced in 1993, sheds light on the relation between the nation-state and democracy: the democratic processes constituted at the level of the nation-state lag hopelessly behind the economic integration taking place at a supranational level. (3) The tremendous tide of immigration from the poor regions of the East and South, with which Europe will be increasingly confronted in the coming years, lends the problem of asylum a new significance and urgency. This process exacerbates the conflict between the universalistic principles of constitutional democracy, on the one hand, and the particularistic claims to preserve the integrity of established forms of life, on the other.¹  

Later in the same essay, Habermas visits citizenship's doppelgänger - statelessness - and recalls one of the key reasons eradicating statelessness was a pre-occupation of the post-1945 era: "Hannah Arendt's diagnosis - that stateless persons, refugees, and those deprived of rights would come to symbolize this century - has proved frighteningly accurate."² In her immensely influential The Origins of Totalitarianism, Arendt had persuasively argued a link between statelessness and the atrocities carried out by the Nazi and Soviet regimes in the 20th century. It is no wonder then that Roma first hit the international register of major human rights concerns when in 1992 the Czech government set about designing and implementing a law which, in the context of the break-up of the Czechoslovak state, was intended to deprive - and succeeded in depriving - tens if not hundreds of thousands of Czech Roma of citizenship in the new state of the Czech Republic. Amid a casual and public new racism, Czech authorities appeared to be setting out to reenact a scenario which the free world had spent the better part of the previous half century resolving never to permit again. Statelessness had not been fully eradicated in Western Europe in the period between 1945 and 1989,³ but the audacity and scale of Czech efforts was breathtaking.⁴

Czech efforts had a distinctly anti-Romani tint. Throughout Eastern Europe in the early 1990s, however, the collapse of the major Communist Federations - Czechoslovakia, Yugoslavia and the Soviet Union - were seized upon by lawmakers in countries such as Croatia, Macedonia, Slovenia and the Baltic states as opportunities to limit the original body of citizens on exclusionary ethnic grounds to the greatest extent possible - to engage in ethno-nationalist demographic engineering. In every one of these states, although discourse was not primarily anti-Romani, Roma frequently found themselves without citizenship in states to which they had genuine and effective links, and in which they had in many cases been born.

The problem of statelessness had given rise in the post-1945 era to two UN Conventions, one on reducing statelessness and the other relating to the status of stateless persons.⁵ The right to a "nationality"⁶ was also included in the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). Problems of statelessness and the arbitrary deprivation of citizenship in a number of new states in Eastern Europe provided impetus for the adoption, in 1997, of the European Convention on Nationality, one of the important innovations of which is to provide an entire separate Chapter VI on "State succession and nationality". European Convention on Nationality Chapter IV importantly recognises that, in addition to applying the principle of non-discrimination in matters relating to the provision of citizenship ("nationality", in the language of the Convention), in the context of state succession, states shall "take account in particular" factors including "the will of the person concerned". In addition, there is a significant muting of the validity of administrative or bureaucratic factors: the residence status to be assessed by authorities is the "habitual" one (that is, not necessarily where a person is formally administratively recognised to be living) and the importance of "genuine and effective links" is recognised (Does the person concerned actually live in the country? Does she have children there? Are those children in a local school? How long has she lived there? Does she, in practice, work? Does she own property there? Etc.)

Though opposition to efforts to deprive individuals of citizenship on arbitrary grounds is derived primarily from human rights discourse, the major international human rights law instruments also provide for the near complete circumvention of the institution of citizenship in the realisation of fundamental rights. The International Covenant on Civil and Political Rights, for example, requires states "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Article 2). Article 1 of the European Convention on Human Rights similarly obliges states to "secure to everyone within their jurisdiction the rights and freedoms" of the Convention. Both provisions emphasize that individuals are endowed with fundamental rights regardless of the arbitrary fact of whether they are citizens or not in a given state, and that states owe a range of obligations to all, citizen and non-citizen alike. Even with respect to social and economic rights - more difficult for states to guarantee at all times to all persons within the jurisdiction of the state - international public law has sought to move toward dismantling the high wall erected in the post-1789 period between citizens and non-citizens: The International Covenant on Economic, Social and Cultural Rights (ICESCR), for example, states: "... the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status." The ICESCR also requires that states may provide limitations to the enjoyment of the rights in the Covenant "only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society." Thus, despite the central role the concept of citizenship played in the rise of human rights culture, the words "citizen" and "citizenship" are rare in the major international human rights instruments. Indeed, the sense of the instruments themselves to is to erode the importance of the very concept which originally gave rise to the idea of fundamental human rights, in the interest of doing away altogether with boundaries between privileged and non-privileged. Of perhaps even greater practical significance for Europe, throughout the 1990s, successive treaties strengthening the powers of the European Union eroded traditional distinctions between citizen and non-citizen in EU member states by allowing citizens of one EU member state to vote and stand for election to public office in any other, as well as to realise a range of other rights in any EU member state.

International law provisions aiming to secure rights for all regardless of citizenship notwithstanding, the 1990s saw a growth of a number of disturbing trends undermining these guarantees, particularly in Europe and, in Europe, particularly among Roma. Even states which had not adopted exclusionary laws were, in many cases, generating new stateless persons or quasi-stateless persons in the 1990s, as well as in some cases legions of persons de facto excluded from a range of basic services. In a number of instances, the rigid requirements of several state administrations conspired to render individuals effectively stateless or otherwise excluded. Take, for example, the situation of many Romani migrants from the former Yugoslavia in Austria, Germany, Italy and Switzerland. During the Milosević regime, if their passports expired and they were male and of military age, there was a strong chance that they would not be able to secure new passports if they did not go home to perform military service in the army of a regime implicated in genocide. If such persons did not go home, they often rapidly vanished from the privileged circle of those with all documents in order into a half-light of illegal work, exclusion from health care and other social assistance, extreme vulnerability to exploitation, and ultimately the threat of forced expulsion. Their families were generally dragged along with them into such status. Such persons also quickly saw the possibility of securing citizenship in Western European countries recede, as in the new migro-phobic era, those countries provided ever-stricter criteria for third-country nationals to acquire citizenship or even simply to establish themselves legally. In light of the fact that in these and similar cases, despite technically retaining their citizenship, Romani individuals were deprived of rights as a result of the loss or downgrade of administrative status or the invalidity of their documents, the ERRC has increasingly widened focus in this area from citizenship and statelessness narrowly, to "personal documents" more broadly.

This issue of Roma Rights takes as its theme "personal documents and access to fundamental rights". With it, we seek a marker-stone on the road from 1989 in Europe. We attempt to describe the landscape as it has changed since Habermas noted that things were once again "in flux". We examine the persons most affected by the gap between "universalistic principles" and "particularistic claims". We note that as the power of international human rights law has grown, in a number of states, a new barrier to the realisation of fundamental rights in practice has grown thick between individuals and access to basic human rights: the documents required to prove eligibility. Some scenarios:

• In Slovakia and elsewhere, the local government is responsible for the provision of a number services including public schooling and the provision of social welfare benefits, crucial to the realisation of fundamental rights. All citizens are presumed to have a local residence permit and therefore responsibility for provision of such services is in principle clear with respect to any given individual. However, for a number of reasons, an apparently increasing number of Roma in Slovakia do not have local residence permits and there is no obligation for any given municipality to provide an individual with local residence. The result are Romani luftmenschen - people who seem to live off air, since their claim on belonging is recognised nowhere.
• All over Central and Eastern Europe, it is still presumed that birth takes place in a hospital. Births outside the hospital - frequent among traditional and/or impoverished Romani communities - must be registered through often complicated procedures. In the new climate of anti-Romani hostility, these procedures become in practice more-and-more difficult, particularly as Roma already lacking certain documents or citizenship attempt to secure birth certificates for children born some place other than a hospital. Without a birth certificate, an individual begins life administratively non-existent and in practice cut off from most state-provided services.
• As a number of essays in this issue illustrate, issues arising from the violent collapse of the former Yugoslavia continue to block Roma in Bosnia, Croatia, Kosovo, Macedonia, Serbia and Montenegro, and Slovenia - as well as Roma outside the former Yugoslavia - from having access to fundamental rights, because their basic status may not be regulated or because they lack one or more documents necessary from having access to basic services.
• Officials in a Germany plunged deep in a spasm of anti-migrant sentiment (frequently with thick anti-Romani overtones) in the 1990s regularly issued a "border crossing permit", a document permitting the bearer one out-going border crossing, for the purposes of expelling herself from Germany. The document was more-or-less the administrative expression of the only right German officials recognised to certain categories of foreigners: the right to leave.

Issues in Central and Eastern Europe are, however, dwarfed by the scale of developments in Russia where, after December 31, 2003, old passports of the Soviet Union will no longer be valid. The so-called "passport system" in Russia, under which valid personal identity documents are required for even so mundane a transaction as the purchase of a train ticket, already constitutes in practice a substantial impediment to the realisation of a broad range of fundamental rights. The transition to a new system of documents concurrently with a major outbreak of racism in Russia threatens massive detrimental impact on huge numbers of persons regarded as suspect or foreign by members of the public administration, among them a significant number of the up to two million Roma in Russia.

Increasingly taking shape is a new order, in which ranks of persons are recognised as endowed with equal rights, but in practice not provided with the means to realise them. Privilege - including privilege arising from embedded racial exclusion - is enforced and reinforced through the selective distribution of personal documents (and the denial of such documents to various categories of individual), where such documents stand in as the admission tickets for access to basic services. Those deprived such documents find themselves crippled before the administration, deprived of crucial material benefits, and in addition exposed to various forms of arbitrary punishments as a result of their "defiance" of the administrative order. From the dust of bureaucracies which previously enforced rights deprivation comes a democratic order in which all are equally endowed with fundamental rights, but only the privileged are provided with the license to claim them.

Endnotes:

1. Habermas, Jürgen. "Citizenship and National Identity" (1990). Reprinted in Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Cambridge, Massachusetts: MIT Press, 1996, pp. 491-492.
2. Ibid., pp.508-509.
3. Greece, for example, until recently systematically failed to provide Greek citizenship to large numbers of persons who were not ethnic Greeks, and some instances of statelessness continue to be reported today. In Germany, where citizenship laws were, until 1999, based solely on descent and included no provision for the acquisition of citizenship through birth on German territory, cases of statelessness were reported regularly. One case involved a German Sinto named Andreas Kaufmann Jr. Mr Kaufmann was born in Simmerberg in the Landau-Bodensee district of Bavaria. In the early 1970s, Mr Kaufmann was declared stateless by Bavarian state officials because in 1819 his ancestors had allegedly illegally moved to Bavaria from the Kingdom of Württemberg (both entities are part of the Federal Republic of Germany). Despite the fact that he and his family had lived in southern Germany for more than two hundred years, the city of Munich ruled that Mr Kaufmann's citizenship claims could not be recognized "since he had inadequate proof required for citizenship." The Bavarian Constitutional Court finally awarded Mr Kaufmann German citizenship only in 1979, after multiple appeals (For information on the Kaufmann and other cases of Sinto statelessness in Germany, see Sybil Milton. "Persecuting the Survivors: The Continuity of 'Anti-Gypsyism' in Postwar Germany and Austria". In Susan Tebbutt, ed., Sinti and Roma: Gypsies in German-Speaking Society and Literature. Oxford: Berghahn Books, 1998, pp. 35-48). In another example, Pogrom, the periodical of the Göttingen-based human rights organization Gesellschaft für bedrohte Völker (GfbV), recently reported on the case of Ms Frieda Kraus. Ms Kraus is a Sinti woman who was born in the Sudetenland, in today's Czech Republic, in the early 1940s. At the end of World War II, she and her family were expelled from Sudetenland by Czechoslovak authorities along with millions of ethnic Germans. According to the GfbV, Ms Kraus received German citizenship after World War II. In the 1980s, however, she was ordered by German authorities to give up her German papers and was instead issued a document certifying her as stateless. Her possession of a German passport was, according to the GfbV, not considered sufficient evidence of her German citizenship.
4. Under international pressure, the Czech government introduced amendments to the Czech citizenship law in 1999 which removed its most egregious elements. The legacy of the effort to use the opportunity of new independence to rid the Czech Republic of its undesired Romani minority is still with us today however; thousands of Czech Roma have not yet recovered from the effort by the state to drive them away, and the Czech government has never undertaken any measures aimed at compensating persons arbitrarily deprived of citizenship during the period 1993-1999.
5. The Convention on the Reduction of Statelessness and the Convention Relating to the Status of Stateless Persons. The former is explicitly concerned with eliminating stateless. Article 32 of the latter also commit states to reduce stateless on the territory: "The Contracting States shall as far as possible facilitate the assimilation and naturalization of stateless persons. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings."
6. For a useful summary of the relationship between "citizenship" and "nationality", see Guild, Elspeth. "The Legal Framework of Citizenship in the European Union". In Cesarani, David and Mary Fulbrook, eds. Citizenship, Nationality and Migration in Europe. London and New York: Routledge, 1996.