Strategic litigation to address childhood statelessness
1. Introduction
Strategic litigation is a poorly-defined concept on which people place a lot of hope for social change. Practising strategic litigation is tricky. The definitions that exist often highlight a perceived tension between the confines of an individual case and the larger social change that those behind the case want to achieve. Our natural tendency to look at famous Court judgments as inevitable – when in fact they were often controversial and unpredictable – can also blunt the risk-taking attitude that lawyers need to have.
The purpose of this short essay is to motivate those committed to combating childhood statelessness to use the Courts to achieve that aim, and give them some starting points for how to do it. The essay is split into two parts. The first situates strategic litigation within the larger frame of theories of (social) change, discussing examples of potential defendants whose behaviour we can hope to change by taking them to court, leading to a reduction in childhood statelessness. It would be unusual to use strategic litigation on its own; it should be connected to, and serve, broader advocacy strategies. The second describes the litigants we can select or support and legal theories we can devise to carry through those theories of change in the courts. What follows is heavily influenced by the author’s professional context: working in Europe to combat antigypsyism. That context brings with it certain assumptions and frameworks that may not apply or may apply differently elsewhere, including: multi-level legislation and jurisdiction on statelessness and other issues (national level, European Union level, Council of Europe level); the existence of supranational Courts to adjudicate disputes concerning human rights and other issues; and assumptions about the rule of law and the particular place of Courts as actors capable of achieving (but often reluctant to bring about) social change.
2. Finding Defendants and Framing Theories of Change
This essay uses a definition of strategic litigation the author has developed elsewhere: trying to secure legal judgments that (a) the defendants (and those like them) were previously incapable of imagining, (b) have an enormous impact outside the courtroom (e.g. by forcing someone to pay a lot of money or dismantle an entrenched system that affects many people), and (c) seem explainable and predictable only in retrospect. Given how little has been done to implement human rights protections that should prevent and end childhood statelessness, it is easy to imagine some outcomes of strategic litigation in this area, including judgments that:
- Order register offices to register the births of all children born on the territory that falls within their jurisdiction;
- Force officials to recognise the citizenship of children born on the territory of a country who would otherwise be stateless;
- Condemn practices by officials that leave particular ethnic minorities at risk of statelessness as discriminatory;
- Interpret constitutional provisions on the rights of children (e.g. to a legal identity) to force authorities to ensure that no child is stateless.
These hypothetical judgments would all meet the definition of strategic litigation set out above. For example, judgment ‘a’ would target the staff of register offices who, as in Serbia for instance, are used to turning away parents who have no identity documents, who seek to register their new born children’s births. These bureaucrats must imagine that they are in the right when refusing to enter people who do not produce the usual identity documents; an instinct comforted by conscious or unconscious racism towards the people affected (mostly Roma). A judgment that these bureaucrats have to register such births will blindside them. The impact outside the courtroom will be enormous: children whose families have been legally invisible will have a legal identity and, armed with birth certificates, can test provisions of national law that protect them against statelessness. The judgment will also appear entirely predictable in retrospect. After all, Article 7(1) of the UN Convention on the Rights of the Child says that “The child shall be registered immediately after birth”. The word ‘immediately’ seems obvious.
The key to making a case strategic is to build a theory of change rooted in the behaviour changes of our would-be defendants. For example ‘b’ above, our would-be defendants are the officials responsible for recognising nationality (usually within the Interior Ministry). The required behaviour change is for them to recognise the nationality of children born in the country who are otherwise statelessness. This could involve a number of behaviour changes, which we want judges to order, or which must be carried out in order to implement a judgment. For example, these officials might have to implement a procedure for officially recognising that children are otherwise stateless, or, when asked, must acknowledge a child’s nationality if they cannot discharge a burden of proof that the child has a nationality.
In relation to example ‘c’, officials engaged in indirect discrimination based on ethnicity (against Roma, for example) will have to change what appears to be an otherwise neutral policy, such as refusing to issue birth certificates in cases where parents do not have identity documents. For example ‘d’, depending on the way the legal system in a given country is structured, a constitutional Court might find on examination, that primary legislation is incompatible with its constitution because it allows for children to be born stateless on national territory. Such a finding might lead parliamentarians to amend legislation on nationality to ensure the right of every child to a nationality.
In all of these cases, the defendants are unlikely to see Courts intervening in these ways. The impacts will be tremendous (eliminating or seriously disrupting childhood statelessness), and the rights-of-the-child basis for the reasoning will give these judgments an air of inevitability. These hypothetical judgments are also useful as they relate litigation to broader advocacy strategies that can obviate litigation altogether.
3. Finding Litigants and Setting Up Cases
To start putting these theories into practice, we should dismiss the idea that strategic litigation involves an inherent tension between the interests of the litigants and the ‘strategic’ interests of the case. Instead, we should think about two kinds of litigants, or rather litigants who fall somewhere along a spectrum. At one end there is the ‘self-interested’ litigant who is involved in a case solely to improve her/his personal situation. For example, a family who has just had a child and instructs lawyers to challenge a refusal to issue a birth certificate or recognise that child’s nationality is understandably anxious to get the case resolved quickly so their child will have a legal identity and a nationality. At the other end are litigants whose sole purpose of getting involved in the case is to see the case decided as framed. For example, if an NGO has legal standing to bring a case in its own name under the anti-discrimination law, or by way of a constitutional challenge to a practice, policy, or statute which perpetuates childhood statelessness among a particular minority group, they would be going to court with the sole aim of getting that question decided, probably at the highest level.
‘Activist litigants’ fall somewhere in between, but towards the latter side. For example, parents who have tried in vain to secure birth certificates for all of their children, and realise that the problem goes far beyond their situation, might see the benefit in theirs becoming a test case; they may instruct a lawyer to secure a strategic victory, even if it takes time, because they feel they have nothing to lose. There is no better or worse place to be on this spectrum; it depends on your institutional position. A legal aid provider, for example, is necessarily taking on self-interested litigants. If you believe that such work can lead to strategic litigation (which I do), it is because you believe that a critical mass of cases can secure the desired behaviour change. This endeavour can be advanced by a second, strategic mind reviewing a case load to identify cases that could be boosted to favour the chances of producing strategic outcomes. For example, NGOs that scan current litigation for opportunities to intervene as a third party or an amicus curiae are usually looking at cases that started out as legal aid to push them in a more strategic direction. Likewise, a lawyer at an NGO might identify one case out of the many to be taken forward, and approach the client to see if they willing to move from self-interested to activist litigants.
By contrast, a small NGO with limited resources but a big mission, unable to invest in a large number of individual cases, would be better off starting litigation in its own name if it can do so, in order to make its point more directly. This kind of public interest litigation can avoid certain pitfalls associated with individual cases (such as when authorities try to make those cases go away by resolving the individual’s situation, but not the systematic problem), which can be fatal for those who do not have the resources to invest time or money in supporting a large number of self-interested litigants. Jurisdictions where class actions or other forms of group litigation are available to challenge failures by public authorities, make for an interesting hybrid: harnessing the power of a large number of self-interested litigants, represented by a few activist litigants acting as class representatives.
Choosing litigants goes alongside choosing a legal theory to carry out our theory of change in the Courts. This is where the lawyers come in – and only here, since the questions about behaviour change are at their core questions of activism. Example ‘a’ from the previous section has already been given this treatment by the European Roma Rights Centre and Praxis, in work supported by the European Network on Statelessness as part of its litigation strategy. The problem in Serbia is that register offices will not register the birth of children whose parents do not have identity documents – as is the case for many Roma in Serbia, following displacement during the wars of the 1990s . The NGOs took two approaches, at two ends of the litigant spectrum.
The first was to bring a ‘constitutional initiative’, an abstract complaint to the Constitutional Court in their own names challenging the primary legislation that allows register offices to delay birth registration in order to verify the details to be entered in the register. This is classic abstract litigation brought by litigants simply to get the legal point aired; if it works, register offices will lose their discretion to turn away parents of new-borns, realising the Convention on the Rights of the Child's (CRC) promise of ‘immediate’ registration.
The second approach was to identify cases from Praxis’s legal aid practice that could form the basis of individual constitutional complaints (again to the Constitutional Court). Such self-interested litigants offer a chance for a high-level judgment, although a critical mass of cases is necessary for the chance of even a single case leading to a strategic judgment.
Similar approaches can be taken with the other cases set out above. For case ‘b’, an NGO with a legal aid approach could make a large number of applications to the authorities to recognise the citizenship of children who would otherwise be stateless and see what the response is. This could be complemented by a strategy of using freedom-of-information requests to establish how many children have actually benefited from that provision of law (if one exists), and then trying to formulate a more abstract challenge in the administrative courts if the authorities are not fulfilling their duty or using their power to ensure that children in this situation are not left stateless. Case ‘c’ could involve data collection about how particular policies affect certain ethnic groups, followed by litigation on behalf of members of that group. Anti-discrimination laws often give NGOs working in the field standing to take cases, meaning that the litigation would not be dependent on self-interested litigants. Anti-racist movements often have activist litigants among their members in any event.
Case ‘d’ could also be done in a legal aid context: for example, lawyers could develop abstract constitutional arguments that can be deployed in the pleadings in a wide range of individual cases. Abstract constitutional cases could also be set up by NGOs, such as the one described above in Serbia, if national law allows.
4. Conclusion
This essay makes it all sound easy - however, it is not. The main reason is complexity and unpredictability. Whatever your view of the role of Courts in society, they are one actor in a complicated system. Sometimes politics is stronger, or the dividing line between law and politics disappears entirely. More importantly, the judicial system itself is complex. There are too many moving parts to guarantee that your theory of change will work. If you are dependent on self-interested litigants, any one case may fall apart because of their situation; their cases may even get resolved favourably but with no further impact. You may have a perfect argument under anti-discrimination legislation only to find yourself faced with judges who do not understand concepts such as indirect discrimination or the shift of the burden of proof. Litigation can be long and costly. Implementation of positive judgments is sometimes unimaginable.
The unpredictability of strategic cases (which nonetheless seem inevitable in retrospect) is an important point. If a case is an obvious win, it probably is not strategic, unless your goal is to bring hundreds of them and overwhelm the defendant. If a lawyer tells you ‘it cannot be done’, then you are probably on to something. If you believe that the story of ending childhood statelessness needs to unfold partially in a courtroom, be prepared to take risks, to lose, and to have disagreements with lawyers. These cases are about taking chances that present little or no risks to stateless children, but potentially massive pitfalls for state officials who are not working towards ensuring children's right to a nationality. Also make sure your case links to a larger strategy. Anything that a court can order a defendant to do, a defendant might also be persuaded to do through more targeted advocacy (perhaps operating under the shadow of pending litigation). Once you have developed a sound approach to litigation, it is easily applicable to advocacy and other efforts, which might be important to undertake simultaneously or instead of litigation.