3.1. The impact of litigation The process of articulating claims and securing rulings, framed in the language of legal entitlement and legal obligation, invokes, reaffirms, and, at times, alters society’s most considered and explicit promises to itself. 19 The potential impacts of strategic litigation to enforce rights were comprehensively analysed in a series of reports by the Open Society Justice Initiative published in 2018, arguing for the importance of litigation as “a distinctive form of advocacy”.20 The synthesis report proposed that the impacts of litigation could be conceived of at three levels: material (direct benefit to the client), instrumental (changes in law or policy), and non-material (changes that are impossible to quantify, such as changes in public discourse or the empowerment of organisations representing an affected community).21 Taking this three part typology of impact, the potential impacts of litigation on the right to a nationality could perhaps be set out as follows: • Material impacts include direct remedies secured by litigation, such as the recognition, restoration or grant of nationality, the issue of identity documents, and/or compensation for harm suffered. • Instrumental impacts include reforms to nationality law, changes in identification policies in relation to proof of nationality, as well as development of international normative standards. • Non-material impacts include the sense of validation of their cause felt by a particular person or individual group struggling for or deprived of nationality, or changes in public discourse in relation to stateless persons by policy makers and society in general.22 These impacts may also be felt at national level, across borders, and in the international normative framework. 3.2. Impacts at national level It may be hard to separate out the impact of litigation from other forms of advocacy. But the following cases are examples where litigation made an important contribution for the resolution of the situation of the individual(s) and/ or to broader law and policy changes:  Australia: In 2022, Australia’s High Court (the highest national court) ruled unconstitutional the powers given to the Minister for Home Affairs under the Australian Citizenship Act to revoke citizenship on grounds that the person’s acts demonstrated “repudiation of allegiance to Australia.” The court restored the Australian citizenship of the plaintiff in the case, which had been removed in 2017 on grounds that he had travelled to Syria to fight with Islamic State.23 A newly-elected government accepted the reasoning of the court and indicated that it would not seek to reinstate a similar power.24  Bangladesh: In 2003 and 2008, Supreme Court of Bangladesh judgments ordered the government to recognise citizenship and issue the necessary identity documents to more than 300,000 stateless Urdu-speakers in Bangladesh, unrecognised since the separation of East and West Pakistan in 1971.25 While the community continues to face discrimination and difficulties in accessing nationality documentation, the ruling changed many lives.26 (u focus box I)  Botswana: In an important decision on the equality of men and women in the right to transmit nationality to their children, the Botswana Court of Appeal ruled in 1992, in the case brought by Unity Dow, that the provisions of the Citizenship Act preventing women from transmitting citizenship to their children with a foreign spouse were unconstitutional. The law was amended as a direct result of the judgment to remove discrimination based on sex 19 Goldston & Dailey, Strategic Litigation Impacts, supra n 16, p.34. Ibid. The report was based on a series of four thematic reports examining the effects of strategic human rights litigation on desegregation of Roma in European schools, on equal access to quality education, on indigenous peoples’ land rights, and on ending torture in police custody. 20 21 Ibid., pp. 43–44. 22 Bingham & Gamboa, “Litigating against Statelessness”, supra n 15. 23 Alexander v. Minister for Home Affairs [2022] HCA 19, Judgment of 8 June 2022, S103/2021, https://eresources.hcourt.gov.au/downloadPdf/2022/HCA/19 Rayner Thwaites, “Citizenship deprivation as banishment: The High Court of Australia in Alexander’s case” (blogpost), GLOBALCIT, 11 July 2022, https://globalcit.eu/citizenship-deprivation-as-banishment-the-high-court-of-australia-in-alexanders-case/. 24 Writ Petition No. 3831 of 2001, High Court of Bangladesh, Judgment of 5 May 2003; Writ Petition No 10129 of 2007, High Court of Bangladesh, Judgment of 18 May 2008. Both judgments available in: Namati and Council of Minorities, “Citizenship Rights of Urdu-Speaking Bangladeshis: The Milestone Judgements of the Bangladeshi High Court” (2015), https://namati.org/resources/citizenship-rights-of-urdu-speaking-bangladeshis/. 25 “Good Practices Paper – Action 1: Resolving Existing Major Situations of Statelessness” (reissued), UNHCR, 2022, https://www.refworld.org/docid/54e75a244. html. 26 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 19