• Is litigation the right tool in the particular national context? • What are the risks? • What networks, alliances, and partnerships will be needed to make litigation successful? • What resources are available to support the case? • Before which forum should the case be lodged? • Who should be the parties to the case—whether complainants or respondents? • What remedies are required and possible to obtain? This section will help to answer these questions. 4.1. Assessing the national context “Context matters enormously” in the development of any strategic litigation strategy.59 The first question may thus be whether litigation is the best tool to use to assist the potential complainants in a case. Who has the power to take a decision, or implement the remedies that could be ordered in a court judgment? Where there is political space, it may be more impactful to seek legal reform through the legislative process rather than the courts. Under a repressive regime, it can be hard to imagine how any outcomes might actually be achieved through the courts, interim or final. There are preconditions to successful litigation that apply as much in cases related to nationality and identity documents as any other field:60 • There is a need for a legal framework that provides at least one route to argue for the rights of those affected; • There is a need for a sufficiently independent judiciary; • There is a need for civil society organisations and lawyers that have the capacity to articulate the issues as rights violations and to litigate; and • There is a need for the supporting network of organisations and activities to use the opportunities presented by litigation. The context for litigation on nationality rights requires especial scrutiny. Long-standing minorities not recognised as citizens are usually amongst the most disfavoured groups in society, criminalised and/or seen as responsible for their own situation; while the rights of (people alleged to be) irregular migrants seldom receive broad public support. Denial of nationality or the issue of identity documents may be a tool to tip the balance of electoral power, creating high political stakes that could compromise a court case. These challenges are not reasons not to litigate, but they must be taken into account. Some landmark cases have been brought and won even within such contexts. It may be hardest of all to build political, public, or judicial support for those deprived of nationality or denied identity documents on alleged national security grounds. In these cases, the international law principle that statelessness should be avoided may be the only argument available that both has purchase in law, and has a chance of garnering broader social support. But proof of the negative of statelessness can be difficult: almost everyone who is stateless is alleged by the authorities of the country of habitual residence to be “really” from somewhere else, where they could claim nationality (even in the face of substantial evidence that this is not the case, including direct denial by the authorities of that country). The presentation of a case around recognition of nationality and issue of identity documents to the audience at national level (both the courts and the wider public) is therefore a critical consideration when setting out to litigate and construct a broader campaign. The framing chosen will depend not only on the arguments available in national law, but also on political concerns about the legal status of the complainants (u section 5.1: Issue framing). 4.2. Risks Strategic litigation looks at the bigger picture by pursuing cases that have the potential to set important precedents, influence policy, and ensure that governments are carrying out their responsibilities. Yet, despite its potential, strategic litigation can be challenging for relatively under-resourced organisations. High-risk and resource-intensive, strategic cases require specific legal expertise and often span many years, with no guarantee of securing a positive outcome.61 59 Goldston & Dailey, Strategic Litigation Impacts, supra n 20, p.33. Mónica Roa and Barbara Klugman “Considering Strategic Litigation as an Advocacy Tool: A Case Study of the Defence of Reproductive Rights in Colombia”, Reproductive Health Matters, Vol. 22, no. 44 (2014), pp.31–41. 60 Chris Nash, “Using Litigation to End Statelessness” (blog post), European Network on Statelessness, 16 July 2021, https://www.statelessness.eu/updates/ editorial/using-litigation-end-statelessness. 61 24 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