3. LITIGATION AS AN ADVOCACY STRATEGY KEY MESSAGES • The impacts of litigation can be considered at different levels: • ҽ Material impacts, such as grant or recognition of nationality to individuals or a category of persons, or compensation for harm suffered; ҽ Instrumental impacts, such as changes to law and policy, including reforms to nationality law or to procedures for birth registration or issuance of identity documents; ҽ Immaterial impacts, such as validation of a cause or changes to public and official perceptions and discourse. Impacts may be felt at national level, across borders (especially in countries with similar legal systems), or in the development of international norms. Statelessness and nationality are defined and created by national law—to a greater extent, perhaps, than any other question of rights—so legal remedies will almost always be needed for those excluded from recognition. Litigation has an important role in shaping those remedies.15 Strategic litigation—“legal action in a court that is consciously aimed at achieving rights-related changes in law, policy, practice, and/or public awareness above and beyond relief for the named plaintiff(s)”16—has a potentially game-changing role. A case before a high-level court can provide a fulcrum for wider advocacy for years to come, elevating the status of an issue in the eyes of the media, politicians and wider public, and shaping the narrative of what is happening. Litigation can make visible the particular viciousness of exclusion from nationality among disadvantaged groups generally ignored by wider society. Litigation has been key to the crystalising of an international normative framework on nationality for a century— dating back to the 1923 Tunis and Morocco Decrees opinion of the Permanent Court of International Justice which first explored the scope and limits of state discretion in attributing nationality.17 In recent decades, litigation before regional courts in particular has clarified the idea of nationality as a right of individuals with corresponding duties for states, and not a matter that is solely within the discretion of states. While this Guide has a particular focus on litigation conceived of as strategic, especially when heard before apex courts at national level, or brought in regional or international fora, the objective is to provide a resource for any litigation on these issues—especially since cases often take on a “strategic” character only after they are initiated. Litigation on a case-by-case basis may also be a critical tool to seek a remedy for individuals denied nationality and/ or identity documents. Or litigation may simply be the most effective tool available to deploy in the interests of any individual—with no need for a broader impact to be considered effective. Any such case may end up in a superior court and establish an important precedent or endorse an interpretation of the law that unblocks resolution of a number of other cases. The best strategy may be to file numerous cases on the same issue, sensitising judges and building popular awareness over time rather than seeking from the outset to achieve a single landmark judgment (u section 4: Developing a litigation strategy). Doing (taking offbeat cases with open-ended positive potential) is far more important than thinking (endlessly designing ‘perfect’ cases with outcomes any expert can predict). …[S]trategic litigation means trying to secure legal judgments that: • • • the defendants (and those like them) were previously incapable of imagining; have an enormous impact outside the courtroom (e.g., by forcing someone to pay a lot of money or dismantle an entrenched system that affects many people); and seem explainable and predictable only in retrospect. That last point is so important: Roma (or whoever benefits from the litigation) need to be able to make these cases part of their emancipation story, so that litigation becomes part of the movement. Strategic cases are unforeseen for the oppressors and ‘retroactively inevitable’ for the liberated.18 15 Laura Bingham and Liliana Gamboa, “Litigating against Statelessness” in Solving Statelessness, ed. Laura van Waas and Melanie Khanna (Wolf Legal Publishers, 2017), pp.129–61; see also analysis in Neha Jain, “Manufacturing Statelessness”, American Journal of International Law Vol. 116, no. 2 (2022), pp. 237–88. 16 James A. Goldston and Erika Dailey, Strategic Litigation Impacts: Insights from Global Experience (New York: Open Society Justice Initiative, 2018), p.25, https://www.justiceinitiative.org/publications/strategic-litigation-impacts-insights-global-experience. 17 Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion No. 4, PCIJ, Ser. B, No. 4, 1923, Permanent Court of International Justice, 1923. Adam Weiss, “What is Strategic Litigation?” (blog post), European Roma Rights Centre (ERRC), 1 June 2015, http://www.errc.org/news/what-is-strategiclitigation. The ERRC is a public interest law organisation working to combat racism and human rights abuse of Roma. 18 18 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S