Laura Bingham works as a Senior Managing Legal Officer at the Open Society Justice Initiative (OSJI). She leads OSJI’s projects on the right to citizenship and documentation of identity and equality and antidiscrimination. She also manages the team’s litigation work on the right to citizenship and statelessness. We caught up with Laura to talk about litigation after the launch of our Statelessness Case Law Database.
- The Open Society Justice Initiative (OSJI) seeks to advance the right to nationality for all. Can you tell us a bit more about what that looks like in your day to day work?
The Open Society Justice Initiative is a strategic litigation program embedded within the Open Society Foundations charitable network. OSJI staff develop and execute strategies that use the law and justice systems to advance human rights. The coronavirus pandemic drastically changed many aspects of our work, as it has everywhere. Before 2020, my answer would have emphasized the amount of time spent together with partners, communities, clients, and colleagues, working in many different local contexts. The last eighteen months saw these connections shift and today our work entails the creative task of translating all of that into screens and text. The devastating impact of unequal access to communications infrastructures became immediately apparent. The vast majority of our work, in any case, requires thoughtfully maintaining diffuse networks of relationships, strategic foresight and planning, and legal practice. Day to day, we spend a lot of time conducting the necessary information-gathering and -sharing in order to realize these ends, and ultimately our goals, including advancing the right to nationality. Our casework on the right to nationality is one of the largest bodies of legal work within OSJI. This means that a considerable amount of time is spent directly on active legal cases. You can read more about our litigation focused on the right to nationality and statelessness here.
- ENS believes that part of the fight to end statelessness in Europe must happen through the courts. How do you see role of litigation in the work to address statelessness and can you share some examples from OSJI’s litigation work?
Every new project or issue that we’ve tackled over the years further illustrates that litigation is interconnected with other social and political processes. When litigation forms part of any effort for progressive changes in favour of protection and promotion of human rights, it is essential to organize legal causes within movements, campaigns, and other, more diverse and cross-cutting, arrangements. Addressing statelessness is often portrayed as less challenging and political than it actually is. By integrating the justice sector into their strategies, advocates unlock new capabilities to rebalance power dynamics with state actors, shape narratives through media, and establish a concrete platform to anchor calls for change. Without a well-connected, organized civil society that prioritizes the leadership of impacted individuals and groups, litigation may not have the desired impact. For this reason, while OSJI has contributed to several important legal victories – among them the recent decision by the Human Rights Committee in the Denny Zhao case, a Kenyan High Court ruling in a case challenging the country’s invasive and discriminatory ID system, and a Colombian Constitutional Court decision that extends protection to stateless refugees born in the territory – in reality these results are the product of longer-term investments by many actors mobilizing collectively, both inside and outside of the courtroom.
- We’ve got some ground-breaking judgments on statelessness from international and regional courts in recent years, but significant gaps remain when it comes to the protection of stateless people and prevention of statelessness. Which key areas do you think could be addressed further by the courts?
Statelessness is created, and the human harms it leads to are worsened, by a toxic combination of discrimination and procedural deficiencies. These factors may grow more acute in some situations than in others, but their consistent presence is unmistakeable. If courts in Europe addressed the structurally discriminatory treatment of stateless people by applying existing equality frameworks, this might encourage wider and more holistic legal changes that are truly needed in order to adjust and compensate for many years of intentional discrimination, negligence, indifference and neglect. Another related area for further legal action involves barriers to accessing protections that have become entrenched because of draconian, dehumanizing immigration laws – a chief example being legal residency requirements for access to statelessness status determination procedures. Many stateless people do not have lawful residence, whether they are stateless in their country of birth or stateless migrants. Illogical procedural requirements render protection mechanisms essentially hollow for those most in need of assistance. Courts can also play an important role in establishing much-needed checks on the rising practice of deprivation of nationality in connection with counterterrorism, national security, and, increasingly, enforcement of other criminal and immigration law. Courts must be further educated about international and regional human rights standards, interpretation of foreign nationality law and practice, and the ineffectiveness of denationalization as a national security tool. Courts can also play an important role in establishing much-needed checks on the rising practice of deprivation of nationality in connection with counterterrorism, national security, and, increasingly, enforcement of other criminal and immigration law. Courts must be further educated about international and regional human rights standards, interpretation of foreign nationality law and practice, and the ineffectiveness of denationalization as a national security tool.
- As you continue your work to fight against statelessness, what are the main challenges ahead and how can we use the existing civil society networks to achieve change?
The challenge will be to establish more humane, sustainable and globally equal mobility frameworks. Embedded within that challenge, lies all the volatility that we have contended with over the last eighteen months of coronavirus pandemic, and the calamity of climate change, natural disasters, and destabilization in geopolitical and economic structures. Each of these factors alone threatens the lives of stateless people and could unwind hard-won advancements in law and practice. Transnational civil society networks are essential bulwarks and sites of leadership – these platforms provide the space to imagine and fight for new innovations. Networks like ENS also establish avenues for local and national, frontline groups to amplify the impact of their work and see that their knowledge reaches key decisionmakers. Given the magnitude of the challenges I point to, particularly their globalized character, redoubling efforts within civil society to build bridges across different regions, along migration routes, and with a worldwide range of advocacy targets and allies, will be a critical project for networks in the decades to come. The emergence of more stateless-led advocacy organizations will deepen and invigorate civil society action, and networks can be an important means of elevating their voices and ensuring that their work reaches other members of civil society as well as decisionmakers.
- In July ENS launched a new Statelessness Case Law Database, a free online tool designed to help legal practitioner working on statelessness. In what ways will the database support your work?
Several factors make it challenging to track developments in jurisprudence on statelessness. These include the fact that statelessness gives rise to so many legal issues because of the fundamental structural exclusion of stateless persons from everyday life, as well as the fact that many legal status issues connected with statelessness arise in the context of individual immigration cases, and unless practitioners have specialized expertise or have already connected with organizations like ENS, many cases fly under the radar. The Statelessness Case Law Database will aid independent practitioners in researching and connecting with the issues, with each other, and with a civil society network. The Database also naturally means that ENS and its partners will undertake the key task of centralizing new case information. This fills a challenging gap for researchers, practicing lawyers, and civil society that stems from the relative invisibility of statelessness as a legal issue and the (misguided) view that nationality and registration laws are “niche” areas unto themselves. Finally, the Database is an online tool, but it also provides the impetus for generation of new research, training, collaboration and outreach. It is for these reasons that OSJI is proud to be among the organizations supporting ENS as it rolls out programming connected to the Database next year – stay tuned!
