“Everyone has the right to a nationality”

Litigation, legal aid & law clinics

7 May 2013 | Laura van Waas, Statelessness Programme, Tilburg University

To a large extent, the Statelessness Programme is a typical academic initiative and many of our activities are those traditionally associated with academia – i.e. they lie in the field of research, teaching and the wider dissemination of information. At the same time, by forming partnerships with a wide range of organisations, including through actively participating in the European Network on Statelessness, we are able to benefit from the direct interaction with different stakeholders. This gives us the chance to learn about newly emerging challenges, fresh policy initiatives and enduring struggles in the area of statelessness – all of which can enrich our research agenda and teaching programme, hopefully enabling us to continue to offer a relevant contribution to the development of knowledge in this field. Meanwhile, wherever possible, we aim to put our expertise to good use in such settings by contributing to trainings or sharing insights from research that may be of interest in the context in question. It is this dialogue with individuals and organisations working on statelessness – or planning to – that is one of the most rewarding things we do.

With this slight side-note of an introduction, I would like to reflect on one such recent interaction with “the real world” and the lessons I took away from it. Two weeks ago, I visited Belgrade to participate in the joint workshop convened by the European Network on Statelessness together with the Western Balkan Legal Aid Network (WeBLAN) and supported by UNHCR and ODIHR.  During the same trip, I also gave a guest lecture to some of the students of Belgrade Law School’s legal clinic. What was especially interesting about this set of events was the focus not on legal theory but on legal remedies. Although my own background is in law (undergraduate, graduate & PhD in fact), I am not actually qualified to practice as a lawyer and have never been involved in offering individual legal advice. Yet, I am keenly aware that it is in individual casework where all of the theory is really tested and must prove itself. It is with great interest then, that I followed a training session about litigating statelessness, listened to the experiences of WeBLAN members whose daily work is to provide legal assistance to vulnerable groups and chatted to students who were involved in Belgrade university’s legal clinic about their experiences.  

Generally speaking, statelessness is an under-developed area of litigation, due at least in part to the lack of specialised expertise in this area among legal practitioners in most countries. Nevertheless, in the Western Balkans, legal aid NGOs are now increasingly turning to the courts specifically to try to settle issues of access to documentation and confirmation of nationality, in order to prevent or reduce statelessness. Thanks to diligent and sustained advocacy work by the same civil society actors, in partnership with other stakeholders, the prospects of achieving an appropriate solution with the help of a judge have also improved through changes to relevant procedures. In Serbia, for instance, a simplified non-contentious procedure now offers a better chance to pursue a claim to late birth registration if it has been refused by the administrative authorities. Such strengthening of the role of the judiciary in these crucial administrative procedures, so that it is empowered to fully play its part in the system of checks and balances alongside the legislative and executive authorities, looks to have inspired other Western Balkan states to adopt similar measures. Legal aid will evidently continue to be a vital – but also increasingly effective tool in assisting stateless and at risk groups in these countries. In this setting, the close-knit, sub-regional civil society network that WeBLAN embodies is an excellent conduit for sharing information and experiences between legal aid providers. For instance, in the run-up to this particular workshop, WeBLAN’s members had each completed a research template with details of “their” country’s legal framework relating to statelessness. This kind of approach can enable the participating NGOs to efficiently exchange basic details of the legal setting they operate in, so that they can quickly spot shared challenges and discuss ideas for solutions.

The dedicated “litigating statelessness” session of the ENS- WeBLAN workshop was led by Maxim Ferschtman – new to ENS, but bringing with him a wealth of experience in strategic litigation of discrimination cases, all the way up to the European Court of Human Rights. He demonstrated how, although lacking an article on the right to a nationality, the European Convention on Human Rights offers many hooks for litigating cases relating to statelessness. He illustrated this with examples of past and pending cases before both the European Court and national judiciary. Importantly, Maxim also voiced some of the realities and dilemmas that lawyers and legal aid providers may encounter when considering the route of strategic litigation. For example, a type of conflict of interest may arise between the client’s own situation and the “big picture”, where he or she is offered a satisfactory settlement but this prevents the much-needed precedent from being set by the court, which would help many others in the same situation. There is also the sheer length of such procedures, which can feel interminable to the client who just wants their problem to be acknowledged and addressed. Devising a strategic litigation strategy or providing individual legal counselling is clearly about much more than just knowing the content of the law and how to navigate its procedures. This is something that I hope to learn more about in future through further interaction with ENS members who are actively engaged in the legal profession.

My last few hours in Serbia were spent with students who participate in Belgrade University’s law clinic. Once I had finished my lecture on the international legal tools for addressing statelessness, I took advantage of the opportunity to find out more about what the students do in this law clinic setting – a worthwhile pursuit since my own university in Tilburg does not currently have a law clinic programme of its own. Belgrade uses a very interesting formula, actually offering several different types of clinic, which focus on different themes and use different techniques. For those interested in gaining experience in the field of private or criminal law, there is a drop-in legal advice service – run in cooperation with prestigious law firms – for which people can literally walk into the university for, one day a week. For the more, for want of a better word, “humanitarian” questions, there are three clinics to choose from: anti-discrimination, human trafficking or asylum/refugee issues. In each of these, the university cooperates directly with a relevant organisation that assists with lectures to the students on the relevant theory and then also helps them to gain some practical experience in the field. ENS member Praxis is an active partner for both the anti-discrimination and asylum/refugee clinics, taking students on outreach missions to the communities that they offer legal services to so that they can see how this works and allowing them to get involved through research assistance, etc. It was very inspiring talking to some of the students about their experiences and seeing the pride with which they spoke of their law clinic. This too, left me wanting to learn more and get more involved in the actual practice of the law in some way or another, rather than always watching from a long-distant side-line.  

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