The seminar will focus in particular on the role of strategic litigation in challenging citizenship law as the last permitted field for discrimination on the basis of race, ethnicity, or religion. The right to a nationality is unique among other rights set out in the international treaties in having no meaning outside of an international legal order made up of states. At the same time, the importance of the right to a nationality as the foundation for other human rights is rapidly increasing, as requirements to prove legal identity and immigration status become ever more pervasive. Because nationality is defined and created by national laws, legal remedies will almost always be needed for those excluded from recognition. This paper will consider the particular role of strategic litigation in shaping those remedies. Although other forms of advocacy to change a law or policy will always be needed, success in an important case can provide a fulcrum for wider advocacy for years to come, elevating the status of an issue in the eyes of the media, politicians and wider public, and shaping the narrative of what is happening. Litigation can make visible the particular viciousness of exclusion from nationality among disadvantaged groups generally ignored by wider society. Strategic litigation may also have impacts across borders. This is most obviously the case for decisions of the international courts and treaty bodies – indeed, in the most blocked situations, such cases may have more influence in another country than they do in their own. But cases at national level, especially from similar legal systems, may also be persuasive in another country. The paper will focus in particular on the role of strategic litigation in challenging citizenship law as the last permitted field for discrimination on the basis of race, ethnicity, or religion. The presentation will draw on an evaluation of the Open Society Justice Initiative’s litigation over almost two decades on access to citizenship and identity documents, and a practitioners’ toolkit on the basis of the same evaluation.
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