Evading International Norms: Race and Rights in the Shadow of Legality

By Zoltán Búzás

How do states violate human rights norms after legalization? Why are these violations so persistent? What are the limits of legalization for protecting human rights norms? Conventional wisdom offers a variety of answers to these questions, but most often they conflate laws and norms and focus only on state actions that violate both. While this focus is undoubtedly valuable, it does not capture cases in which states violate human rights norms without technically violating the law. Norm breakers are not necessarily lawbreakers. Focusing exclusively on norm violations that are illegal obscures the possibility that agents could violate norms in a legal manner, engaging in actions that are awful but lawful.

Presenting rich case studies of the French expulsion of Roma immigrants from 2007 to 2017 and the Czech segregation of Roma children in schools for those with mild mental disabilities between 1993 and 2017, Evading International Norms argues that the violation of human rights norms often continues after legalization under the cover of technical legality. While laws and norms overlap, interact, and shape each other in many ways, they tend to reflect each other only selectively, which leads to the existence of norm-law gaps. Taking advantage of such gaps, states resist unwanted human rights obligations by transgressing international human rights norms without violating the laws designed to protect them—a process Zoltán I. Búzás names norm evasion.

Based on a wealth of evidence, including more than 160 interviews, the book shows that the treatment of the Roma by France and the Czech Republic violated the norm of racial equality in a technically legal fashion. Búzás cautions that the good news about law compliance is not necessarily good news about norm compliance and draws attention to racial discrimination against the Roma, one of the largest and most marginalized European minorities.

• Language: English
• Publisher: University of Pennsylvania Press
• Release date: Jan 1, 2021
• ISBN: 9780812297683

Book preview

Evading

International

Norms

PENNSYLVANIA STUDIES IN HUMAN RIGHTS

Bert B. Lockwood, Series Editor

A complete list of books in the series is available from the publisher.

EVADING

INTERNATIONAL

NORMS

Race and Rights in the Shadow of Legality

Zoltán I. Búzás

UNIVERSITY OF PENNSYLVANIA PRESS

PHILADELPHIA

Copyright © 2021 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

Published by

University of Pennsylvania Press

Philadelphia, Pennsylvania 19104-4112

www.upenn.edu/pennpress

Printed in the United States of America on acid-free paper

10 9 8 7 6 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data

Names: Búzás, Zoltán I., author.

Title: Evading international norms : race and rights in the shadow of legality / Zoltán I. Búzás.

Other titles: Pennsylvania studies in human rights.

Description: 1st edition. | Philadelphia : University of Pennsylvania Press, [2021] | Series: Pennsylvania studies in human rights | Includes bibliographical references and index.

Identifiers: LCCN 2020016825 | ISBN 978-0-8122-5269-9 (hardcover)

Subjects: LCSH: International law and human rights. | Social norms—Political aspects. | Social norms—International cooperation. | Romanies—Civil rights. | Romanies—Legal status, laws, etc.

Classification: LCC KZ1266 .B89 2021 | DDC 342.08/5—dc23

LC record available at https://lccn.loc.gov/2020016825

CONTENTS

PART I. BACKGROUND AND THEORY

Chapter 1. After Legalization: The Persistent Violation of International Human Rights Norms

Chapter 2. A Theory of Norm Evasion

PART II. FRANCE AND ROMA IMMIGRATION

Chapter 3. Choosing Norm Evasion: The French Expulsion of Roma Immigrants

Chapter 4. Constructing French Expulsions as Norm Evasion

PART III. THE CZECH REPUBLIC AND ROMA EDUCATION

Chapter 5. Choosing Norm Evasion: The Czech Segregation of Roma Children in Special Schools

Chapter 6. Constructing Czech Special School Segregation as Norm Evasion

Chapter 7. International Relations at the Intersection of Laws and Norms

Appendix

Notes

Bibliography

Index

Acknowledgments

PART I

BACKGROUND AND THEORY

CHAPTER 1

After Legalization

The Persistent Violation of International Human Rights Norms

After Romania and Bulgaria joined the European Union (EU) in 2007, about 15,000–20,000 Roma individuals from these states went to France in search of a better life.¹ As citizens of the EU, the Roma, also known more pejoratively as Gypsies, were entitled to travel to and reside freely in other member states subject to a few conditions.² The arrival of these generally poor and highly visible immigrants elicited strong domestic opposition.³ One poll found that 77 percent of French people agreed with then interior minister Manuel Valls that the Roma do not integrate in French society and belong in their countries of origin.⁴ In July 2013 Jean-Marie Le Pen, the former leader of the National Front party, described the Roma as irritant and smelly, while Gilles Bourdouleix, a member of the French National Assembly, said about the Roma: Maybe Hitler did not kill enough.⁵

The French government came under pressure to return Roma immigrants to their countries of origin. But simply expelling them as a group would have incurred significant legal costs. EU legislation and the European Convention on Human Rights (ECHR) prohibit collective expulsions based on race and ethnicity.⁶ Such blatantly discriminatory expulsions of the Roma would have invited adverse rulings by domestic courts, the European Court of Justice (ECJ), and the European Court of Human Rights (ECtHR). French officials devised a clever solution to satisfy domestic constituents without having to pay the costs of violating the law. Under the humanitarian return assistance policy (aide au retour humanitaire), they offered thousands of Roma nominal amounts of money to leave France voluntarily.⁷ Departures occurred in the shadow of police intimidation, the confiscation of identity documents, and deep Roma poverty, all of which undermined the voluntariness of these returns. According to one Roma, The police told us to choose: either we willingly left now, or we would be forcibly removed later.⁸

Humanitarian returns were widely seen as normatively inappropriate because they violated the international norm of racial equality, the social standard for appropriate nondiscriminatory behavior. Human rights experts and activists emphasized that the policy, which singled out the Roma for returns and did not give them a genuine choice to stay, violated their right to racial equality regarding free movement and residence.⁹ One legal scholar affirmed: Regardless of its legality, the repatriation program feels intuitively wrong, and sends a strong message of ‘we don’t want you here’ to the Roma people.¹⁰ Nearly half of the French officials I interviewed privately agreed. A French group of NGOs, Collectif National Droit de l’Homme Romeurope, concluded: The conditions of implementation and the perverse effects of this device absolutely deny its qualification as ‘humanitarian.’¹¹

Despite its inappropriateness, this strategy has provided France sufficient legal cover to satisfy domestic constituents and remove unwanted Roma immigrants with legal impunity. French prime minister François Fillon stated: The recent deportations of Roma to their countries of origin made by our country have been made in full compliance with European law.¹² Many courts understand expulsion based on a relatively narrow meaning of compulsion. Subtle forms of intimidation and compulsion did not show up on their narrow legal radars, even when they violated the relevant international social norms. France could claim that humanitarian returns did not involve compulsion and were voluntary. They did not technically qualify as expulsion and were therefore legal. There have been no court rulings, domestic or European, against humanitarian returns.

This example illustrates states’ ability to resist unwanted human rights obligations by violating international human rights norms in the shadow of technical legality. It also raises broader questions about the limits of legalization for protecting human rights norms. Since World War II human rights norms have undergone extensive legalization or codification into international treaty law.¹³ The standard expectation is that legalization strengthens human rights norms and increases norm following by making these norms more enforceable, legitimate, and politically salient.¹⁴ Despite these potential benefits, the violation of human rights norms often persists and sometimes even increases after legalization.¹⁵ It is suggestive that the strongest regional human rights regime, that of Europe, struggles when it comes to protecting the human rights of the Roma.¹⁶ A 2017 survey by the EU’s Fundamental Rights Agency lamented that despite strengthening EU antidiscrimination legislation, there has been little progress in countering discrimination on the ground.¹⁷ In 2018 the same agency concluded: The existing evidence of wide-spread discrimination against Roma suggests that the Race Equality Directive (2000/43/EU) is not effective—at least with respect to that particular group. Critical assessment by both the EU and the Member States is needed of why this is the case and what measures are required to remedy the existing situation.¹⁸

How do states violate human rights norms after legalization? Why are these violations so persistent? What are the limits of legalization for protecting human rights norms? Existing studies in international relations offer a variety of answers to these questions, but most focus on state actions that violate both human rights norms and the laws designed to protect them. This focus is valuable, but it does not capture cases like France’s humanitarian returns, where states violate human rights norms without technically violating the law. Because existing studies conflate laws and norms, they do not distinguish between norm violations and law violations. Yet norm breakers are not necessarily lawbreakers. Focusing on norm violations that are illegal obscures the possibility that agents could violate norms in a legal manner, engaging in actions that are awful but lawful.

This book argues that the violation of human rights norms continues after legalization under the cover of technical legality. Its starting point is that human rights are embedded in and guide action through both laws and norms.¹⁹ The next chapter defines and distinguishes norms and laws. Suffice it to say here that laws are formal rules that score higher on precision, obligation, and delegation, while norms are informal rules of appropriate behavior that score lower on these dimensions.²⁰ Although laws and norms interact and overlap considerably, they mirror each other selectively, engendering norm-law gaps. Because of these gaps, law compliance and legality on the one hand and norm following and normative appropriateness on the other often diverge. Most relevant for our discussion, actions that are technically legal may be normatively inappropriate.

The book provides a two-part theory of norm evasion. The first part focuses on norm evasion as a strategy and explains why and how states engage in it. Different domestic and international groups compete to shape state policy. In this stylized account, one side favors policies that comply with human rights laws and norms, whereas the other favors policies that violate human rights laws and norms. When the two groups are similar in strength, obeying both laws and norms or transgressing both can be very costly. Instead, the more attractive options are mixed strategies: follow norms but violate laws or comply with laws but violate norms. When officials deem law violations costlier than norm violations, the state will exploit norm-law gaps to violate norms in a technically legal fashion. This strategy, which I label norm evasion, allows the state to satisfy groups opposed to human rights while lowering the legal costs of doing so. The second part of the theory focuses on norm evasion as an outcome of a complex interactive process between the state and other relevant agents. After the state chooses an action, human rights supporters will contest its legality in court and its appropriateness in public and private discourse. The state and human rights opponents will defend its legality and appropriateness. The less often that courts rule against the state’s action and the more discourses characterize this action as inappropriate, the more it becomes constructed as norm evasion. Another way to put this is that when the state wins the competition over the legality of its actions and loses that over appropriateness, its actions are constructed as norm evasion.

I illustrate the argument in original and rich case studies of the French expulsion of Roma immigrants (2007–17) and the Czech segregation of Roma children in schools for those with mild mental disabilities (1993–2017). As I discuss later in detail, I find that for much of the period under study France and the Czech Republic have engaged in norm evasion. Their treatment of the Roma has violated the international norm of racial equality in a technically legal fashion.

The book sheds unique light on international politics at the intersection of laws and norms. It has a number of specific implications for the study and practice of international politics and human rights: it cautions that the good news about law compliance is not necessarily good news about norm following; it draws attention to subtle legal practices through which democracies can undermine human rights generally and racial equality specifically; and it provides policy-relevant knowledge for human rights advocacy.

Having summarized the argument, it is also important to clarify what I do not argue. While norm evasion reveals the limits of the law’s ability to protect human rights, it does not deny that the law also offers possibilities in this respect. After all, norm violations may be worse in the absence of legalization. From this perspective the argument can be located between those championing and criticizing human rights law, though closer to the latter.²¹ I do not argue that in the absence of legalization human rights practices would necessarily be better. Even when they are not legalized, human rights and the associated social norms are limited in their ability to improve people’s lives. Others have amply documented these limits.²² I seek to address the limits of legalization that stem not so much from the limits of the underlying norms and rights but from the drafting, interpretation, implementation, and enforcement of the law.²³ The result, I hope, is a theoretically interesting and empirically nuanced argument that takes us a step closer to addressing what Posner considers the key challenge for scholars: explaining when international law works and what its limits are.²⁴

The remainder of the chapter unfolds as follows. In the next two sections I review and critique the international relations literature for overlooking norm evasion and propose a new typology that captures it. I then summarize the theory and its main contributions. Following that, I place the book in the broader interdisciplinary literature on rules, race, and rights. The last two sections introduce the Roma and outline the road map of the book.

A New Typology of Norm Following and Law Compliance

Existing studies in international relations contend that if human rights abuses persist after legalization it is because agents commit to but do not comply with human rights laws and norms.²⁵ In some cases, captured by the managerial approach, noncompliance is unintentional. States commit with the intention of complying with the law, but capacity problems, legal ambiguity and indeterminacy, and unanticipated changes over time prevent them from doing so.²⁶ In other cases, captured by the enforcement approach, states engage in noncompliance intentionally. This is especially likely because standard enforcement mechanisms of international law that involve reciprocity, reputation, and retaliation are weaker in the area of human rights.²⁷

Indeed, after legalization many violations of human rights norms take the form of law violation. However, this conventional wisdom implicitly assumes that international (human rights) laws and international (human rights) norms are essentially the same.²⁸ It then conflates law violation with norm violation and law compliance with norm following. Although there is considerable overlap between human rights norms and laws, they are not necessarily identical. Just as human rights cannot be reduced to legal rights, human rights norms cannot be reduced to human rights laws.²⁹ For this reason, law noncompliance and norm violation on the one hand and legality and appropriateness on the other can diverge: But no matter where the lines are drawn, the unavoidable incompleteness of rules will mean that in some circumstances, appropriate actions (i.e. those that are not socially undesirable, excepting their illegality) will fall on the ‘illegal’ side of the line, and inappropriate actions will fall on the ‘legal’ side.³⁰ Focusing only on norm violations that also violate the law and are illegal truncates our understanding of resistance to human rights perhaps as much as focusing on revolutions truncates our understanding of how the weak resist the domination of the strong.³¹ We would miss everyday forms of legal resistance to human rights norms that are subtle but consequential.

Table 1. A Typology of Norm Following and Law Compliance

To capture this subtle form of action we need to distinguish between law compliance and norm following. As a first step in this direction, I propose a novel typology that distinguishes between law compliance and violation on the one hand and norm following and violation on the other (Table 1). Based on these distinctions, I identify four types of actions. First, what I call dual compliance involves obeying both norms and laws. It is similar to fulfillment, which for Brysk and Jimenez is necessary to get from legal rights to justice.³² Second, what I call law evasion entails law violation and norm following.³³ Other scholars capture similar phenomena through labels like operational noncompliance, constructive noncompliance, and the moral right to do legal wrong.³⁴ Examples include the illegal but legitimate Kosovo intervention in 1999 and some forms of conscientious objection and civil disobedience.³⁵ While important in their own right, dual compliance and law evasion have little to say about human rights norm violations after legalization, since they both involve norm following.

The next two forms of action are more relevant for the purposes of this book. What I label dual violation consists of transgressing both laws and norms. This is the emphasis of existing studies discussed at the beginning of this section. The last and most important form of action here is what I label norm evasion, which involves law compliance and norm violation. Studies in other disciplines characterize similar actions as lawful but awful.³⁶ International relations scholars are not unaware of this phenomenon, which they label, among other things, minimal compliance, mock compliance, and avoidance.³⁷ Some even refer to evasion, though they leave the term undefined.³⁸ I will discuss my terminological preference for norm evasion later. For now, the important point is that while international relations scholars are aware of this form of action, they have not subjected it to sustained study.

Overlooking norm evasion is an important omission. A rich array of legal, sociological, and public policy studies demonstrates its widespread nature.³⁹ Studies of racial discrimination in the United States reveal that violations of racial equality norms occur not only through illegal strategies but also through arguably legal ones.⁴⁰ As a recent article on the persistence of segregation in Little Rock put it: What’s stunning about today’s methods of avoiding integration is that they are, by and large, legal, but they nevertheless leave black students stuck in schools that are separate and unequal.⁴¹ Perhaps the most contentious charge during the Senate confirmation hearings of Gina Haspel, the Central Intelligence Agency’s director, was that her involvement in enhanced interrogations may have been legal but it was immoral.⁴² Plenty of examples exist in international politics too. For instance, because legalization transposed the international anti-mercenary norm inaccurately into international antimercenary law, states can take advantage of legal loopholes to employ mercenaries in inappropriate but technically legal ways.⁴³

Norm evasion is by no means new, but its study is particularly timely. Because legitimacy is increasingly a function of legality, agents have strong incentives to comply with the law, even if they violate norms.⁴⁴ The growing importance of law and lawyers in international politics might lead to more attempts to evade norms. In illiberal democracies domestic courts that lack genuine independence will be more likely to uphold the legality of actions that violate liberal norms, thus amplifying instances of norm evasion. The most interesting variation in the future may be not between law compliance and law violation but between law compliance that follows norms (dual compliance) and law compliance that violates norms (norm evasion).⁴⁵

Instrumental Uses of International Laws and Norms

What, if anything, does the broader international relations literature say about norm evasion? There are three bodies of literature that are potentially helpful. I label them legal instrumentalism, norm resistance, and dark legality. Though these labels oversimplify the nuances of each of these bodies of work, they should make it easier for readers to follow the arguments.

First, legal instrumentalism centers on states’ instrumental use of international law to reduce their legal obligations. States could codify human rights in shallow treaties that entail low obligations and demand little improvement in human rights practices.⁴⁶ If the treaty is demanding, individual states can make their specific commitments shallow through various flexibility mechanisms, such as reservations, understandings, and declarations (RUDs).⁴⁷ They can also create and exploit conflicts of (hard and soft) laws,⁴⁸ legal malleability and indeterminacy,⁴⁹ and can strategically select venues for international rule making (regime shifting) and dispute settlement (forum shopping).⁵⁰

Legal instrumentalism provides a helpful start for thinking about norm evasion. It reminds us that law compliance and effectiveness are not necessarily the same. The former refers to law-behavior conformity, while the latter refers to law-induced behavioral change.⁵¹ When treaties and commitments are shallow and undemanding, even perfect conformity between human rights law and behavior (law compliance) will do little to improve behavior (effectiveness). Yet the utility of this literature in understanding norm evasion is limited, primarily because it has little to say about (human rights) norms. While it does an excellent job of explaining how states manipulate international law to pursue their goals arguably lawfully, it says little about the appropriateness of these actions.⁵²

A second body of scholarship, which centers on norm resistance, promises to address this limitation. Following the initial focus on norm entrepreneurs that promote normative change, current research sheds light on antipreneurs that oppose such change and defend the normative status quo.⁵³ Studies examine how norms fail to progress through the stages of the norm life cycle and the spiral model and might even regress despite legalization.⁵⁴ Scholars have revealed a wide array of norm resistance strategies. State officials and ordinary individuals engage in hypocrisy, paying lip service to international rules while busily violating them in practice.⁵⁵ They can resort to apologies, denials, excuses, justifications, and rhetorical adaptation.⁵⁶ Moving beyond rhetoric, states can use norm immunization, targeting norm entrepreneurs with prohibitive national laws to halt the diffusion of international norms.⁵⁷ Third World countries and weaker local agents can employ norm subsidiarity, understood as local rule creation to resist the norms of dominant central (Western) agents.⁵⁸

This intriguing work on norm resistance sheds light on a wide range of norm resistance strategies. Yet its contribution to norm evasion is also limited. Whereas legal instrumentalism focuses on laws but has little to say about appropriateness, norm resistance focuses on norms but has little to say about legality. It rarely specifies whether norm resistance is legal or not. In some cases we can infer legality and appropriateness with reasonable certainty. At the low-intensity end of norm resistance agents contest the norm but nonetheless comply with it (contested compliance)⁵⁹ in ways that are likely legal. These would qualify as dual compliance in my typology. At the high-intensity end agents engage in outright defiance and counter-stigmatization, which can be both inappropriate (from the perspective of the original norm) and illegal (provided the norm is legalized).⁶⁰ These would qualify as dual violation. Much norm resistance is of moderate intensity. Some of it probably qualifies as norm evasion, but in the absence of the literature’s explicit discussion of the legal status of norm resistance strategies, it is difficult to know which.

A final group of studies on what I call dark legality is the most useful for thinking about norm evasion. Inspired partly by critical legal scholars’ admonition that we should not conflate the legal with the good, it embraces a disenchanted view that sheds light on the dark sides of international law.⁶¹ It shows, among other things, that states manipulate the law to achieve plausible legality for harmful actions including detention, torture, war, and high-tech lethal targeting.⁶² As the proliferation of the laws of war increases the costs of legal compliance, states are more likely to engage in military operations without formally declaring war and concluding peace, thus departing from long-held norms.⁶³ This allows states to maintain ambiguity and plausible deniability about their status as belligerents, helping them lower the costs of military operations. Pursuing legal accountability and justice through law may come at the price of peace; international law can give agents immunity, shielding them from responsibility for harmful action; and the privileging of lawyers and the law blunts the critical edge of human rights, marginalizes activists without legal training, and distorts complex social problems as it translates them into legal problems.⁶⁴ Studies of transitional justice also explore resistance to human rights norms under the facade of legal accountability. An excellent example is hijacked justice, where states superficially comply with the laws of transitional justice without undergoing the deeper social transformation these laws seek.⁶⁵ I build on this work on dark legality to develop a theory of norm evasion that takes legality and normative appropriateness equally seriously, offers a sustained theoretical discussion of their relationship, and provides ample evidence of both.

A Theory of Norm Evasion

I propose a two-part theory of norm evasion to elucidate the violation of norms under the cover of technical legality. The first part examines norm evasion as a strategy, explaining when states choose it. The second part discusses norm evasion as a constructed outcome that is the product not only of what the state does but also of how others respond to state actions.

The Theory

The first part of the theory is based on three components: norm-law gaps that make norm evasion possible; compliance and violation pressures on the state, the causal forces of the theory; and the state’s choice of norm evasion, the main effect. Norm-law gaps are based on the assumption that human rights are embedded in and guide action through laws and norms. Drawing on a rich body of interdisciplinary literature, I contend that while laws and norms overlap, interact, and shape each other in many ways, they are not necessarily identical. Norms and laws tend to reflect each other selectively, engendering norm-law gaps. Because of these gaps, legality and appropriateness often diverge. What is appropriate may be illegal and what is legal may be inappropriate. For instance, in Ireland social norms on abortion were more permissive than laws, such that abortion could be seen as illegal but appropriate.⁶⁶ Norms can also be less permissive than laws. The international normative prohibition on the use of nuclear weapons (the nuclear taboo) appears to be less permissive than international legal instruments, given the absence of specific treaties that prohibit nuclear weapon use.⁶⁷

There are countless types of norm-law gaps. I restrict my focus in the following ways to capture the ones that I see as the least studied and the most interesting. I concentrate on gaps that pertain to the same category of rights (racial equality); obtain primarily between international laws and norms rather than their domestic counterparts; and occur between norms and laws at the same point in time rather than, say, between past laws and current norms. I am also interested in norm-law gaps where norms are less permissive than laws, because in such cases norm evasion is more likely. I bracket how and why norm-law gaps are created and focus on how they are exploited through norm evasion.⁶⁸

This book centers on the state as the chief evader, because it is the main duty-bearer under human rights law. The state is minimally defined in the theory.⁶⁹ Its preferences and actions are largely a function of the balance between violation and compliance pressures. Different domestic and international groups compete to shape state policy according to their preferences. One side, which might include domestic or international human rights nongovernmental organizations (NGOs) and some intergovernmental organizations (IGOs), supports policies that comply with human rights laws and norms (the compliance coalition). Another side, which might include special interest groups and most of the domestic public, supports policies that violate human rights laws and norms (the violation coalition). These groups exert colliding compliance and violation pressures on the state. When compliance pressures are dominant, I expect the state to obey both laws and norms (dual compliance). When violation pressures are dominant, I expect the state to transgress both laws and norms (dual violation). When compliance and violation pressures are relatively balanced, dual violation and dual compliance are less attractive because they are costlier. Instead, the more attractive options are mixed strategies: follow the norm but violate the law (law evasion) or comply with the law but violate the norm (norm evasion). When the state deems law violation costlier than norm violation, a scope condition of the theory, the state is more likely to opt for norm evasion.

The second part of the theory examines how other agents respond to the state’s attempted norm evasion. These responses shape the legal and normative statuses of the state’s chosen actions, which are neither inherent in these actions nor the state’s alone to determine. Rather, they are constructed through an interactive process between the state, courts, and various members of the compliance and violation coalitions. After the state chooses a course of action, other agents contest its legality and appropriateness through litigation and normative discourse. Human rights supporters will contest the legality of the state’s actions in court and will contest its appropriateness in public and private discourse. The state and human rights opponents will defend the legality and appropriateness of this action. Both litigation and normative discourse can shape legality and appropriateness. However, given my understanding of these phenomena, which I develop later, litigation shapes legality more and normative discourse shapes appropriateness more. When most normative discourse deems the state’s action inappropriate, and few rulings pronounce this action illegal, the state’s action is constructed as norm evasion. This allows the state to satisfy violation pressures while lowering the legal costs of doing so.

The Evidence

I illustrate the theory in rigorous case studies of France’s expulsion of Roma immigrants (2007–17) and the Czech Republic’s segregation of Roma children in schools for those with mild mental disabilities (1993–2017). I employ process tracing based on rich primary and secondary sources, most importantly over 160 semi-structured interviews conducted between 2013 and 2018 with French and Czech government officials, activists, and European officials (particularly at the European Union and the Council of Europe). The interview material informs my assessment of the strength of violation and compliance pressures and their role in causing state action; speaks to the legal and normative statuses of the state’s actions; and provides fine-grained original insights into how officials exploit specific norm-law gaps through suitable norm evasion strategies. The empirical material also includes a comprehensive and coherent combination of other sources and methods: the analysis of over 370 court rulings to assess the technical legality of state actions; hundreds of texts related to the appropriateness of French expulsions and Czech segregation; and the discourse analysis of over 1,450 texts to establish the existence of the international norm of racial equality apart from the law and preempt skepticism about the existence of this norm.

The cases show that for much of the period under study, France and the Czech Republic have engaged in norm evasion as their treatment of the Roma violated the international norm of racial equality in a technically legal fashion. Table 2 summarizes the empirical findings. To give the reader a sense of the cases, I briefly discuss the main norm evasion strategies and the norm-law gaps they exploited. It is important to note that the theory explains variation in the choice and construction of norm evasion, dual compliance, and dual violation. It does not explain variation in the different norm evasion strategies. I describe these strategies to provide richer empirical analyses.

About 15,000–20,000 Roma immigrants arrived in France after Romania and Bulgaria joined the EU in 2007. The arrival of visible and generally poor Roma elicited strong opposition from the general public, some politicians, and the media. Polls show that the majority of the French supported Roma expulsion, even at the risk of violating the applicable laws and norms. Another group, including the European Union, the Council of Europe’s Commissioner for Human Rights, the European Roma Rights Centre, Human Rights Watch, and the French NGO coalition Romeurope, opposed expulsions and insisted on French compliance with the relevant laws and norms. In France the relevant compliance and violation pressures were relatively balanced between 2007 and 2013.

To remove the Roma without paying the costs of law violation, France engaged in norm evasion. It employed four main norm evasion strategies. One was the humanitarian return program, the opening example of the chapter. As discussed earlier, the program offered thousands of Roma nominal amounts of money to leave the country voluntarily. However, departures occurred in the shadow of police intimidation and deep Roma poverty, which undermined the voluntariness of these returns in subtle but consequential ways. This norm evasion strategy exploited what I call the subtle compulsion gap. European and French courts understood expulsion based on a narrow definition of compulsion, missing subtle forms of compulsion entailed by humanitarian returns. France removed unwanted Roma immigrants with legal impunity, even though these removals were widely seen as inappropriate by most of my interviewees.

In addition, norm-law gaps rooted in legal exceptions and superficial examination of individual circumstances made possible three other norm evasion strategies. The standardized expulsion strategy involved giving individual Roma immigrants expulsion orders that were nearly identical and contained little evidence that their individual circumstances warranted expulsion. These orders obscured the collective nature of Roma expulsions, which are illegal, making them look like individual expulsions, which are legal. Superficial monitoring of law compliance allowed these expulsions to be considered technically legal. Two other norm evasion strategies exploited legal exception gaps. European law affords the right to free movement and residence to EU citizens in other member states, unless they pose a threat to public order, abuse rights, or constitute an unreasonable burden. States have some discretion in interpreting these legal terms within the broader constraints of European law and jurisprudence. France’s threat to public order and abuse of rights and unreasonable burden evasion strategies interpreted these legal exceptions broadly to expel unwanted Roma in a technically legal but inappropriate fashion.

Table 2. Summary of Empirics

Other relevant agents constructed French expulsions through these four strategies as norm evasion—normatively inappropriate but technically legal. Based on the analysis of over 370 French court rulings, I show that there was considerable contestation of the legality of Roma expulsions in domestic courts, but these courts validated the legality of the vast majority of them. European courts have not ruled on the matter. At the same time, most public discourse characterized Roma removals as normatively inappropriate. A British member of the European Parliament, Richard Howitt, stated: And what France has done is wrong.⁷⁰ Romanian church leaders and part of the French political elite agreed that the expulsions were wrong and immoral.⁷¹ Interviews confirmed both the legality and the inappropriateness of French expulsions. According to one interviewee, I think in France there is always the superficial compliance in the cases that we see. And I think they are greatly assisted in this by the French courts.⁷² Norm evasion strategies allowed France to satisfy domestic constituents and remove unwanted Roma without incurring the legal costs of doing so. Since 2014 the compliance coalition has grown stronger than its opponents and has pushed France toward obeying both international laws and norms (dual compliance). Even as Roma expulsions from French territory have declined, evictions from their homes remain high, raising concerns that norm evasion has shifted from expulsions to evictions.

The case of Czech segregation of Roma children in schools for the mentally disabled also supports the theory. Many Central and Eastern European states educate Roma children in segregated and substandard schools. One particularly problematic practice is their disproportionate placement in special schools, those for children with mild mental disabilities. About a quarter of Roma children in the Czech Republic are in special schools; this is one of the highest proportions of segregated Roma children in Europe. Between 1993 and the mid-2000s the violation coalition was dominant and the state segregated Roma children