Introduction

Institute on Statelessness and Inclusion

The existence of statelessness is strong evidence of the denial of human rights, for all stateless persons have had at least one right - their right to a nationality - violated in the most extreme way possible. Statelessness often also serves as the catalyst for the denial of other rights – access to socio-economic rights, freedom of movement and the liberty and security of the person (among others). Discrimination is most often an underlying factor in both the creation/existence of statelessness and the denial of other rights to stateless persons. When those affected are children, the impact is often sharper, more profound and more life-changing. There is no legal justification for such denial, but this is the reality of hundreds of thousands of children around the world. As elaborated in a recent UN Secretary General’s Report on the arbitrary deprivation of nationality of children:

There is no legal basis upon which States that have arbitrarily deprived a child of his or her nationality can justify the denial of other human rights to the child on grounds of his or her resulting statelessness. Repeatedly, however, the invisibility of stateless children to the eyes of society causes the violation of their rights to go unnoticed.

If considering the above factors, a human rights lawyer, would be likely to advise of one main remedy – litigation. However, further complicating this picture is the reality that stateless people, due to the very factors set out above, are more likely to face several barriers to accessing justice, such as costs, standing, lack of awareness, systemic prejudice and lack of implementation.

The role of the law can be crucial to bettering the lot of the stateless who, in many situations, have been pushed outside the law and then victimised for occupying this space. However, pursuing justice through litigation and legal action can be a difficult, expensive and time-consuming process. Its capacity to bring real relief to individual victims, and to demand large-scale change of the structures and mechanisms that impact on society and individual alike is undeniable. But this can cut both ways, as evidenced through the dramatic tussle on the right to nationality between the Dominican parliament and Courts on the one hand, and the Inter-American Court of Human Rights (IACtHR) on the other .

This chapter brings together a range of essays, case notes and interviews from around the world, which collectively provide a wealth of information on both why litigation and legal assistance is important, and how litigation and legal assistance can be successfully pursued. These contributions also show how this kind of engagement has the capacity to shape the very principles and norms that constitute international, regional and national human rights law. Given the thematic focus of this report on childhood statelessness, many of the contributions relate to legal action aimed at ensuring children’s right to a nationality, their access to birth registration and documentation and the triggering of safeguards against statelessness. Hence, this chapter complements the previous chapters in this report on the child’s right to a nationality, safeguards against statelessness and the sustainable development framework.

The contributions in the chapter also show how strategic legal action (be it litigation, legal aid or paralegal work) can complement wider advocacy and mobilisation campaigns, which are the focus of chapter 6. To quote from an essay in this chapter:

the way in which our objective is being pursued, through close collaboration between civil society, local communities and government actors and a combination of strategic litigation, partnership and advocacy is a strong model which may inspire similar action in other parts of the world as well .

These experiences show that adversarial court processes do not necessarily aggravate relationships between civil society and states (as is sometimes feared), but can also serve to demonstrate that it is in everyone’s interest to resolve these problems through cooperation. 

This chapter begins with an essay by Adam Weiss, the Managing Director of the European Roma Rights Centre (ERRC), on strategic litigation to address childhood statelessness . Weiss’ essay challenges us to think outside the box. He argues that strategic litigation, by its very nature, is controversial and unpredictable, though its outcomes in hindsight, almost appear inevitable. The essay guides us through the process (and theory) of finding defendants and litigants, and gives examples of the type of result that can be pursued and achieved through a well thought out case.

The next short contribution – first published on the Blog of the European Network on Statelessness in May 2016 – is also by Weiss and his ERRC colleague, Nicole Garbin. It reflects on the recipe which led to successful litigation to address childhood statelessness in Italy . This is followed by the first of four essays on the provision of legal assistance and paralegal work to address childhood statelessness in various countries around the world. The essay by Elena Rozzi of Association for Legal Studies on Immigration (ASGI) (an Italian NGO), speaks of the importance of working with communities and gaining their trust, in order to deliver effective paralegal work. Rozzi concludes her essay with the words:

The methodology of paralegals, even though quite time-consuming and costly in terms of coordination, training etc., led to the opening up of new perspectives and relationships and sowed the seeds for longer-term strategies to ensure that marginalised stateless or at risk of statelessness persons can exit the limbo of legal invisibility .

This sentiment was shared by the other three essays on legal assistance and paralegal work, which appear later in the chapter.

The chapter then shifts focus to some of the landmark judgments on childhood statelessness in the recent past. A  short series of case notes, summarises three such judgments: the Nubian Minors case, Genovese v. Malta and Mennesson v. France. This is followed by an insightful analysis by David Baluarte , Associate Clinical Professor of Law and Director, Immigrant Rights Clinic, Washington and Lee University School of Law, on the two landmark IACtHR judgments on the right to nationality: The Girls Yean and Bosico v Dominican Republic and Expelled Dominicans and Haitians v Dominican Republic. Baluarte appeared as co-counsel in both these cases, and his nuanced reflection goes to the heart of why this jurisprudence is so important, but also why it may have contributed (even if temporarily) to worsening the situation. This is an important insight, which demonstrates that legal action never takes place in a vacuum, but instead plays out in an ever-changing socio-political context. We then have a short piece by Allison Petrozziello of the Observatory on Caribbean Migrants (OBMICA), which introduces us to some of the stateless children in the Dominican Republic, whose lives have been tangibly impacted by the legal drama described in Baluarte’s essay. This is followed by our second essay on legal assistance and paralegal work , by Delfina Lawson and Macarena Rodriguez, this time with a focus on the work of their legal clinics in Chile. The problem they encounter and address in their work, is similar (though less politically inflammatory) to the problem in the Dominican Republic – namely the questionable interpretation of the ‘in transit’ exception to the jus soli principle – which in Chile, rendered many thousands of children at risk of statelessness. Immediately following this piece is an interview conducted by the same authors with a child who visited their clinic on behalf of her undocumented sister.

We then travel across the world to Kyrgyzstan, via a short essay by the NGO Ferghana Lawyers, which has been implementing a ground-breaking programme of mobile legal clinics in this Central Asian nation. The outreach, legal assistance and strategic litigation carried out by Ferghana Lawyers has had significant success and shows how litigation can change lives. The final two contributions in this chapter are by the Malaysian NGO DHRRA. The first provides an overview of the highly innovative and successful legal assistance programme carried out by DHRRA to secure documentation and nationality for members of the impoverished and marginalised estate Tamil population of Indian origin in Malaysia. DHRRA’s multi-pronged approach of community-based legal aid, evidence-based advocacy and awareness-raising, and strategic litigation is having a significant impact on individual lives and the system as a whole. This chapter closes by sharing the story of one family that was assisted by DHRRA. This piece shows both the massive cost of statelessness and the profound impact that accessing documentation can have on people’s lives.