a forum for an argument to be developed. Many countries have specialised family or children’s courts, which are likely
to be a more sympathetic forum for cases concerning the best interests of children in relation to nationality. In some
countries, there is the possibility of a direct petition to a constitutional court.
National nonjudicial bodies: There may also be the possibility to bring a complaint to nonjudicial bodies such as
national human rights commissions or ombuds offices; in addition to the value of a favourable ruling in its own right,
the findings of such bodies may also be relied on as evidence in subsequent litigation.
The European Roma Rights Centre (ERRC) has followed this strategy in North Macedonia in relation to
discrimination in registration of births, supporting complaints to the national ombuds office, and then using these
findings in submissions to the UN Human Rights Committee.69
The available options should be discussed with the potential complainants and others, rather than just taking the first
and most obvious option. In some cases it may be possible to run separate complaints in parallel, dealing with different
aspects of the case (for example, before an administrative forum or family court on access to birth registration and in
the general courts on gender discrimination in nationality law). Similarly, it may be possible to bring cases relating to
the same facts in multiple jurisdictions. The openness of different courts to different arguments will always be a factor
in these decisions.
In Kenya, the introduction of a new identification system has been litigated both before the Kenyan courts and
in a case brought in France against the private company involved (u section 4.6: Parties to the case: identifying
complainants and respondents).
International courts and other treaty bodies do not have the same enforcement powers as those at national level. But
their decisions have much greater normative force, across multiple jurisdictions.70 While there has been no judgment
of the International Court of Justice that has considered the right to nationality since the Nottebohm case of 1955,
non-recognition of nationality has been relevant in several cases.
The inter-state case brought by The Gambia against Myanmar before the International Court of Justice specifically
raised the deprivation of Myanmar citizenship in the context of the allegation of genocide of the Rohingya.
Among the requests made by The Gambia were that the court should declare that Myanmar must allow the “safe
and dignified return of forcibly displaced Rohingya and respect for their full citizenship and human rights and
protection against discrimination, persecution, and other related acts”.71
In the countries making up the Council of Europe, the Organisation of American States, or the African Union there
may be the possibility of litigating a case before a regional human rights court. Even though they may not have direct
effect, these regional decisions can then be referenced in national courts, enabling judges (if the national context is
favourable) to be bolder in their interpretation of the law. Within the European Union, the Court of Justice of the
European Union (CJEU)—whose judgments are binding on all EU member states—may also have jurisdiction if the
rights of European citizens are affected by decisions relating to nationality.72
Both the Inter-American and African human rights systems have treaties that provide for a complaint based on the
right to a nationality, and the failure of the state to grant nationality to a child born in the territory who had not
acquired another nationality at birth. Particularly important decisions, with resonance in many other jurisdictions,
have been those adopted in cases brought against the Dominican Republic and Kenya, which have significantly moved
forward the international understanding of state obligations.73
Thus, it may also be possible at the international level to split a situation of denial of nationality into separate aspects
and bring different cases challenging different elements of law and practice.
In litigation on behalf of Kenyans of Nubian descent, cases were brought before both the African Commission on
69
Joint submission to the Human Rights Committee on North Macedonia, The Macedonian Young Lawyers Association, Bairska Svetlina (Centre for Development of the Roma Community), AVAJA, the European Network on Statelessness, and the Institute on Statelessness and Inclusion, 16 August 2021, https://
www.statelessness.eu/updates/publications/joint-submission-human-rights-committee-north-macedonia, North Macedonia: ERRC & MYLA Sue Authorities
for Discrimination of Roma & Other Unregistered Persons, ERRC, 08 December 2022, http://www.errc.org/press-releases/north-macedonia-errc--myla-sue-authorities-for-discrimination-of-roma--other-unregistered-persons.
70
On the strengths and limitations of different forms of UN advocacy see, Leveraging UN Human Rights Mechanisms to Achieve Gender-Equal Nationality
Laws: Key Points for Civil Society, Global Campaign for Equal Nationality Rights (2022), https://www.equalnationalityrights.org/resources/leveraging-un-human-rights-mechanisms-to-achieve-gender-equal-nationlity-laws/.
71
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar: 7 States intervening), International Court of
Justice, Application instituting proceedings and Request for the indication of provisional measures, Republic of The Gambia, 11 November 2019, para. 112,
https://icj-cij.org/case/178.
72
Choice of forum among European courts and UN treaty bodies is discussed in the Litigation Toolkit on Statelessness for Legal Practitioners; Volume 1: Impact Litigation and Judicial Mechanisms to Effect Change, European Network on Statelessness and AIRE Centre, (updated 2024), https://www.statelessness.eu/updates/
publications/litigation-toolkit-statelessness-legal-practitioners.
In particular: Case of the Girls Yean and Bosico, supra n 52; Expelled Dominicans and Haitians, supra n 64; Kenyan Nubian Children’s Case, supra n 35; Kenyan
Nubian Children’s Case, supra n 35.
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