2022 Statelessness & Citizenship Review 4(1) LEGAL AND POLICY BACKGROUND ON STATELESSNESS IN THE MENA We believe that MENA statelessness advocates should take note of Zhao’s recognition that prolonged indeterminacy of status may amount to an act of impermissible administrative violence. As researchers and advocates focusing on statelessness in the MENA, we are keenly aware of the dearth of remedies available to stateless persons through national legal systems. In Zhao, we see a potential approach for, at least, exposing the reality of multi-generational statelessness in the region. The HRC’s findings directly condemn one persistent feature of how MENA states restrict access to citizenship: through indefinite deferral of status determination that could span generations. A clear pronouncement against state inaction (or foot-dragging) provides a basis for confronting it as applied to children born without or of undetermined nationality. Whether advocacy opportunities can be realised ultimately depends on the strategic judgment of MENA civil society actors and the availability of more information concerning the phenomenon of statelessness in each state in the region.12 A The Obstacles to Invoking Zhao in the MENA In most MENA states, no functioning pathway exists for stateless people to acquire nationality. Further, matters pertaining to nationality are largely at the discretion of the executive branch and generally outside the competence of the courts. Strategic litigation in the MENA region is, at best, a new, fledgling phenomenon.13 This would impede efforts to bring a case to an international adjudication mechanism. Though most MENA states are parties to the ICCPR, the only states that have acceded to its Optional Protocol, which allows for the consideration of individual communications, are Algeria, Libya and Tunisia.14 These three are also the only MENA states (except Israel) that have signed on to one or both of the statelessness conventions. The 1961 Convention crucially establishes an affirmative obligation to prevent statelessness by granting citizenship to children born on states’ territories who would otherwise be stateless.15 The 1954 Convention relating to 12 13 14 15 In the context of the Open Society Justice Initiative’s experience in the Dominican Republic, Laura Bingham and Liliana Gamboa illustrate the importance of local buy-in for the success of regional strategic litigation: Laura Bingham and Liliana Gamboa, ‘Litigating Against Statelessness’ in Laura van Waas and Melanie J Khanna (eds), Solving Statelessness (Wolf Legal Publishers 2017) 146–47. Open Society Foundations, ‘Strategic Litigation Impacts: Global Narratives About Social Change — A Conversation with Colin Gonsalves, Dmitri Holtzman and Sherrilyn Ifill’ (Transcript of Recording, 26 October 2015) 29 <www.opensocietyfoundations.org/ uploads/36efb5e5-e68a-4f96-945f-3aaa76d7c08c/strategic-litigation-impacts-global-narrativesabout-social-change-20151026_1.pdf>. Recently, diaspora actors have made efforts to increase recognition of strategic litigation within the region, adding to Arabic language resources available about the issue: HuMENA for Human Rights and Civil Engagement, MENA Diaspora Paving Road to Justice: What is Strategic Litigation and Why It Matters (Report, 2022) <https://humena.org/edocational-tools/topic/259>. For a discussion of the lack of effective regional courts in the MENA, see Diego Gebara Fallah, ‘Assessing Strategic Litigation Impact on Human Rights’ (2019) 10(1) Revista Direito e Práxis 759. The Optional Protocol (n 7) gives the HRC the ability to deliver its views on communications concerning individuals who allege violations of the ICCPR by a state party to it. 1961 Convention (n 11) art 1(1). 148