Sometimes litigation is the obvious advocacy strategy to assist an individual or try to achieve systemic change. Sometimes going to court is the only option there is; worth trying despite the resource commitment and even if the transformational effect is doubted. But sometimes going to court may be the wrong choice, the risks outweighing the benefits. Any strategic litigation effort must therefore consider the potential risks.62 The potential risks factors to consider include: • The lack of an independent judiciary. If litigation is planned before national courts, the first question is the independence of the judges, at different levels, and their openness to rights-based arguments, especially on matters of statelessness and entitlement to nationality. Does discrimination against those perceived as outsiders mean that lack of sympathy for (alleged) non-nationals among the general public may also impact judges, if only to make them cautious to adopt a judgment challenging that perspective? In some national contexts, it may be that an interim court of appeal is more likely to be sympathetic than an apex constitutional or supreme court. If unsuccessful at first instance, what are the risks that a good appeal judgment will be appealed again by the government and definitively overturned—or might it be better to leave the situation at least somewhat ambiguous? • Potential negative consequences of a high-profile case. Any litigation plan must analyse what the negative consequences might be of a high-profile case—even if it is successful. Litigation is by its nature confrontational and may close off negotiated solutions. If a case is controversial, for example because national security is invoked, is there a risk of creating a precedent that would have negative impacts on other less controversial situations? If litigation is undertaken too hastily, without full knowledge of the different aspects of national and international law, and without solid preparation of the case, there is a risk that an application may be dismissed without a full hearing of the arguments. The ruling of an international court or treaty body may be seen as illegitimate and provoke a nationalist response. What are the risks to clients: might there be a backlash against the individual applicants or the wider community? In any country, complainants and their representatives and partners may be exposed to unacceptable harassment because they are made more visible in the public eye. How can these consequences be mitigated? • Impact on solidarity among the different members of the group facing discrimination. The need to distinguish among different categories of the excluded in order to advocate for specific remedies and prioritise solutions (u section 4.7: Remedies I: Establishing the desired outcomes) also has its risks in diminishing solidarity among the different members of the group facing discrimination. If only some can be helped, are hierarchies reinforced that are not helpful to an ultimate solution based in law reform that applies to all? At what point might the interests of different clients be in tension with each other, or with the broader strategic goal? Can these risks be mitigated by ensuring separate representation for individuals and groups whose interests may diverge? How can language barriers be bridged, imbalances of power between client and lawyer overcome, and trust be built? Initial planning must think through these risks and how to mitigate them by reducing judicial anxiety at supporting the rights of those affected. For example, through presentation of a case in a way that creates public sympathy and political support, and also by showing how a rights-supporting judgment flows from existing jurisprudence and social values. Uzbekistan. End statelessness for 50,000 people. © UNDP/Mirfozil Khasanov 62 See also discussion in Litigation Toolkit on Statelessness for Legal Practitioners, Volume 1, European Network on Statelessness and AIRE Centre, updated 2024, pp.10-12, https://www.statelessness.eu/updates/publications/litigation-toolkit-statelessness-legal-practitioners. 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 25