Today ENS is launching a Litigation Toolkit on Statelessness, a guide for legal practitioners to conduct strategic litigation on statelessness.
Strategic litigation must be a part of our fight to end statelessness.
The aim of strategic litigation is to identify and bring cases that will have a broad impact by challenging systemic shortcomings that deny people the right to a nationality, or to access the rights that nationality brings.
Statelessness is often described as the denial of someone’s right to “legally exist”, pushing people to the margins of society and putting them at risk of discrimination and human rights abuses. Statelessness is created or perpetuated by the law – its gaps, inconsistencies, discriminatory provisions, or merely its silence fail to protect stateless people or lead to new situations of statelessness. Statelessness in Europe is made worse by the failure of countries to live up to commitments they have made under international and human rights law.
It is vital to hold States to account in respect of their obligations to protect stateless people, and so the courts are an essential avenue through which to pursue change and end statelessness for good. Our new Litigation Toolkit is designed to support attempts to litigate for change, with the purpose of developing and effectively implementing the right to a nationality and the human rights of stateless people. Strategic litigation (also referred to as impact litigation) aims to litigate individual cases in a way that may affect broader change and have an impact on a wider group of people, often focussing on issues that are both systemic and systematic, which have historically affected many people and may be deeply rooted in the social system or institutional regimes.
New tools for legal practitioners
The new Litigation Toolkit responds to the real need to strengthen knowledge and awareness of statelessness among legal practitioners across Europe. Its first volume provides an overview for practitioners on statelessness and nationality law, a manual to understand strategic litigation, and guidance on how to identify impactful cases, litigate them strategically, or submit third party interventions. It also summarises the key legal instruments and the regional and international courts that exist to address statelessness, including considerations on the implementation of judgments. The second volume of the toolkit outlines the key jurisprudence from the European Court of Human Rights, the Court of Justice of the European Union, and the UN Treaty Bodies that either directly concerns the rights of stateless people or addresses other connected human rights issues that impact on people without a nationality.
The publication of the toolkit is a key moment in ENS’ wider agenda to focus on building capacity in this area. The next step will be to produce legal thematic briefings that will complement the toolkit, providing a comparative analysis of how European regional and national courts address specific statelessness-related issues.
ENS has also developed a series of other capacity-building tools to support the work of our members and allies in litigating to address statelessness. Last year we launched the Statelessness Case Law Database, an online database containing national, regional and international case law addressing statelessness or related issues. It is the first case law database to focus exclusively on jurisprudence relating to statelessness. The database is a key tool our members can draw on to ensure they are better equipped to address statelessness before the courts, as well as to increase awareness among practitioners and wider civil society.
Together with the AIRE Centre, this year we have held two training sessions on strategic litigation for ENS members. These were an opportunity to discuss the challenges our members encounter when conducting strategic litigation, including issues with the implementation of judgments, how to measure impact, and how to better employ international law in litigation work.
ENS also recognises the need to work closely with the judiciary across Europe to increase opportunities for collaboration and exchange. In line with this aim, ENS and the AIRE Centre intervened before the European Court of Human Rights in Pham v UK, focusing on the obligation to assess whether statelessness would result from a decision to deprive a person of their nationality; and Dabetić v Italy, on States’ obligation to protect stateless persons under the European Convention on Human Rights through effective and accessible routes to regularisation. Depending on their outcomes, which are still pending, these cases have the potential to set important precedents.
Stay in touch for legal updates and more information about this stream of work.
The power of strategic litigation
Strategic litigation has the potential to effect significant legal change, and may also be used to challenge political decisions, achieve certainty around policy changes, or address systematic human rights violations that affect large numbers of individuals. It can be a powerful tool to influence law and policy development, to persuade public bodies, institutions, and governments to reconsider their policies or their implementation in practice. This has already been demonstrated by court victories at various levels. Some landmark regional cases include two cases heard in the European Court of Human Rights, Genovese v Malta, on the prohibition of discrimination in acquiring a nationality, and Hoti v Croatia, which requires States to provide an effective and accessible procedure allowing stateless people to have their status regularised. Recent successful cases before the European Court of Justice have focused on the right to a nationality for children of same-sex couples in the EU (including in Bulgaria and Poland).
National courts have also showed how progressive case law may help in preventing and reducing statelessness. A recent example is that a Spanish court recognised the Spanish nationality of a child who would otherwise be stateless, as she was born in Morocco on a journey to Europe but did not have a birth certificate (read this blog for a more detailed analysis). You’ll find many more examples of successes – as well as less promising cases – in the toolkit and in the Statelessness Case Law Database.
Despite these successes, strategic litigation alone is unlikely to be sufficient to enact the level of change we so badly need to see. It must be used in the context of broader social and/or political movements and accompanied by advocacy and lobbying efforts, including for effective implementation. We have encountered this, for example, in Bulgaria where national authorities are delaying the implementation of the V.M.A. judgment from the Court of Justice of the EU. Litigation as an approach, therefore, has some limits and it is fundamental to pursue this work hand in hand with other advocacy efforts, to ensure that court proceedings and positive judgments resonate on the ground and address critical gaps in law and practice.
Working in partnership
Joining efforts has been a vital element of our litigation work, which would not be possible without our key allies and partners. First, we are always in awe of the outstanding work of our members, to whom we are very grateful. In particular, we wish to acknowledge our ongoing collaboration with the AIRE Centre as a key strategic litigation partner. The support from the Open Society Justice Initiative, as well as other partners and donors, was vital in allocating the resources to produce the toolkit, the development and continuous improvement of the Statelessness Case Law Database, and to unblock new knowledge-sharing. We are especially grateful for the financial support and time contributions through our pro-bono partnerships with several law firms, including Akin Gump Strauss Hauer & Feld LLP, DAC Beachcroft, Freshfields Bruckhaus Deringer, Hogan Lovells and DLA Piper. We look forward to continuing to work together.
Note: If you are a legal practitioner using the litigation toolkit or other capacity-building tools as a support in your litigation work, please remember that the toolkit is not exhaustive and should not be relied on as a single source for bringing cases before any court or monitoring body. We strongly encourage you to read in detail the relevant instructions for litigation and practice directions, the original judgments and decisions referred to in this toolkit, and to receive specialised training by qualified providers. Please feel free to contact ENS and the AIRE Centre for further information or assistance to this end.