We would not be fighting childhood statelessness if it were not, at least in part, for States’ stubbornness. This entry is based on the assumption – which I hope others in the network share with me – that at least some of the battles against childhood statelessness must happen in the courtroom, against the State authorities responsible for perpetuating childhood statelessness. These are my ideas how to frame those battles strategically in support of ENS campaign “None of Europe’s Children Should be Stateless”.
A Brief Word on Strategic Litigation
I should start by warning you that I have somewhat fixed, and definitively militant ideas about what the words “strategic litigation” mean. It’s a kind of anti-theory designed to resist the loosey-goosey way people often use the term, to mean nothing more than “important cases”, “cases I’m taking”, or “cases that raise interesting legal points” (which no one in any movement may care about). To me, strategic litigation means trying to secure legal judgments that the defendants (and those like them) were previously incapable of imagining, that have an enormous impact outside the courtroom, and that seem explainable and predictable only in retrospect. They are Black Swans. And lawyers cannot predict in advance precisely which cases will turn out to have been strategic; the best way to practise strategic litigation is to conduct litigation experiments where there is no (or very little) downside risk to the movement you serve, and the chance of a judgment that will overwhelm any adversaries standing in the way of full respect for established rights and freedoms.
The key tool is a litigation theory of change; the steps to building one for childhood statelessness are sketched out below.
Step 1: Identify Our Adversaries
In my day job at the European Roma Rights Centre, our adversaries are easy to name: they are the Segregationists. When it comes to childhood statelessness, it can be a bit harder. Childhood statelessness has complex causes, often rooted in historical events that are continuing to play out. But childhood statelessness is also perpetuated day-to-day by officials whose conduct – whether intention or not – needs to change to ensure respect for human rights. These include:
registrars who feel they are doing their job well when they turn away parents who try to register the birth of their newborn, because those parents haven’t got papers themselves;
interior ministry officials who refuse to register the children of parents who have gone abroad to undertake family arrangements (e.g. surrogacy, gay adoption) unavailable at home;
parliamentarians who approve legislation making it impossible, or more difficult, for children born in their country who are otherwise stateless to acquire nationality.
Although I don’t think they are quite in the same category, I would also throw in:
4. European Union officials who believe that childhood statelessness in the EU falls outside their competence.
Step 2: Identify the Behaviour Changes We Want and the Court Judgments (Reasoning and Remedies) We Need to Get There
For group a, we know what changes we want and two ENS members – the ERRC and Praxis – have been working hard to get there in Serbia, including through a pilot litigation exercise also supported under ENS’s 2015-18 litigation strategy. We want registrars to register the birth of every child born in the country. This will not solve the problem of statelessness, of course, but there is a strong link, as UNHCR identified in Action 7 of its Global Action Plan to End Statelessness. In Serbia, you are expected to bring documents that many people (especially Roma) do not have to register your child’s birth. The reasoning we need from the courts is obvious yet innovative: a clear statement that “immediately” means “NOW”. The “immediately” in question is found in Article 7(1) of the UN Convention on the Rights of the Child: “The child shall be registered immediately after birth”. We are looking to be the first to define this “immediately” through a court judgment; for us, “immediately” does not mean that the moment the child out of the womb, but rather the moment the child’s parents present to the authorities to seek registration. Such a finding seems obvious, but will overturn the worldview of registrars who are used to turning undocumented parents away, on some belief that they are maintaining the integrity of Serbia’s birth registry. The remedy we are seeking will take away the legal tools that allow registrars to delay birth registration.
The stubbornness of group b was on full display in the judgment of the European Court of Human Rights in Menneson v France: French parents resident in France could not get the French authorities to register the birth of their daughter, which happened in California, a jurisdiction which allows a couple who have a child via surrogacy to be named as the parents on the birth certificate. (Because of the USA’s constitutional jus soli provision, that was not a case of statelessness, but it is not hard to imagine similar stories in Europe leaving children at risk of statelessness.) What we need to change such officials’ behaviour is a judgment that tells them to put the rights of the child first, which is what the Strasbourg Court told them in Mennesson. A powerful remedy, analogous to what we are seeking in Serbia, would be a declaration that any provision allowing the child of a citizen not to be registered in the civil registry is unconstitutional.
Group c’s behaviour is going to be hard to change. It is rooted in the belief – which has widespread support – that nationality is at the heart of state sovereignty. We would have to choose the jurisdiction very carefully, preferably one that has a strong constitutional provision on nationality (such as Article 38 of the Serbian constitution) and/or a strong tradition of directly applying provisions of international treaties in court. We can also try a lateral attack. For example, where the anti-discrimination law (or the anti-discrimination provision of the constitution, more likely) allows it, why not attack these laws as constituting (probably indirect) discrimination, for example, against Roma?
And group d? These are not really adversaries; they are (hopefully) potential allies waiting for the next logical step in what we will may come to call the “Rottman line of cases”, telling them that the existence of Union citizenship confers on the EU institution some competence over the situation, for example, of stateless children born in the EU or to EU citizen parents. Cases I have earlier proposed taking on this blog, about stateless Roma in Bulgaria and Italy, may give us that result and get our friends at the European Commission and Parliament to take action.
The main question we have to answer at this stage is how novel the legal argument should be. The kinds of litigators I take issue with only see merit in taking cases where the legal points are tricky and innovative. That is wrong: sometimes you need a complicated argument (as with groups c and d), but sometimes simplicity (“immediate = NOW”, or relying on well-established but poorly-known Strasbourg case law, such as Mennesson) is better suited to get a result that helps the movement.
Step 3: Figure Out Who Our Litigants Should Be
There are two kinds of litigators: those who love individual clients (and pick their “strategic” cases reactively, based on who comes through the door) and those who hate individual clients (and design their cases like Napoleon and Nelson planning for Waterloo). In reality, different theories of change call for different kinds of claimants and the different kinds of litigation they take. Clients come on a spectrum, and – as elite as it may seem – litigators trying to take high-impact cases with few resources need to think about who the ideal claimant (i.e. named litigant) is. This is the spectrum I refer to in my day-to-day work: on the left-hand side, the claimants are only involved in their case to improve their personal situation by securing a remedy for a rights violation. Working only with this client group is essentially legal-aid work. On the right-side, the claimants are involved solely in order to allow the case to be designed as litigated. The typical example of this kind of litigation is actio popularis cases (i.e. public-interest litigation, usually brought by an NGO). In the middle, you have, among others, activist-litigants: victims of rights violations who wish both to improve their situation and put themselves forward in a case that will contribute to the movement.
The instinct, when you think of children, is to make them the litigants: kids are the ideal sympathetic clients. That may be true, but it depends on what kind of judgment we are trying to get.
In Serbia, for example (example a), we are trying to get a technical legal victory about the meaning of “immediately”. One part of the litigation strategy there (which you can read more about here) is to take an actio popularis case which allows the legal argument to be aired without allowing the defendant to retreat behind the facts of the individual case. At the same time, though, some individual cases (which we hope to cultivate in Serbia) can persuade judges in ways that abstract cases never will. An indirect discrimination claim may or may not require a “left-side” client depending on what the anti-discrimination law or constitution allows in a given jurisdiction. Here are some thoughts on ideal clients for some of the other attacks described above:
For group b (those interior ministry officials dealing with couples who have gone abroad), activist-litigants may be easy to find among same-sex couples or surrogate parents, whose situations can be ideal for litigation, especially for getting cases to the European Court of Human Rights. The problem here is likely to be an administrative practice, as opposed to laws, so individual clients are more likely needed. However, an actio popularis challenging the discretion that the authorities have might also be possible.
For group c, I am tempted to prescribe an “incubator” approach: take a large number of cases in which children are deprived of citizenship and see how they develop, investing resources in the ones that emerge as the most promising. This implies the lack of control that I think is inherent in good strategic litigation, which is all about experimentation. However, actio popularis cases are possible here too, perhaps under anti-discrimination laws.
For group d, I also propose an incubator + actio popularis approach, since what we ultimately want is a reference to the Court of Justice of the EU, which is nearly impossible to predict and is best achieved through creative persistence.
What I set out above is not an outline of the next big case that will crack childhood statelessness. I can’t predict what that case will be and neither can you. What you have above is a loose set of instructions on how to contribute to creating an environment where that next big case will emerge. Any lawyer would tell you that an activist alone cannot build it, and that is true, but more importantly, a lawyer cannot do it without an activist. So if you care about childhood statelessness in Europe, and you are not an activist-lawyer, become one, or find your missing half and get to work. I hope the Serbian case will be the next big thing in this field, but, at least in my view, proper strategic litigators hate a monopoly. So find your nearest adversary, decide how their behaviour needs to change, decide what reasons and remedies you need from a judge to make it happen, and pick the best litigants. Go!
This piece is one of a series of ENS blogs themed around its campaign “None of Europe’s Children Should be Stateless”. It is based on a presentation by the author at ENS’s conference in Budapest on 2-3 June 2015. Visit the ENS website here if you wish to access ENS country studies or other conference papers, including the resulting action statement which is intended as a guide for collective efforts to end the scourge of childhood statelessness. ENS’s next campaign event in Strasbourg on 21 September will see the Network launch its new report “No Child Should be Stateless” – see here for more information.