Magazine article Forced Migration Review

Judicial Denationalisation of Dominicans of Haitian Descent

Magazine article Forced Migration Review

Judicial Denationalisation of Dominicans of Haitian Descent

Article excerpt

In the Dominican Republic (DR) enjoyment of nationality and its attendant rights has become all but impossible for persons of Haitian descent - a population that numbers between 250,000 and 500,000 in a population of about ten million.1 Recent changes in the DR's constitution, followed by a perverse interpretation by the Constitutional Court in September 2013, have heightened the threat that Dominicans of Haitian descent - although citizens under a plain reading of the constitution - will become permanently stateless, as defined by international law.

An important cause of the marginalisation of Dominicans of Haitian descent is the state's longstanding reluctance to recognise their Dominican nationality. From 1929 until January 2010 the Dominican constitution granted Dominican nationality to all children born on national territory, except for those born to diplomats and to parents who were "in transit" at the time of the child's birth. For years the DR insisted that individuals of Haitian descent born in the DR had no right to Dominican nationality because their parents were in transit, even when these families had been in the country for multiple generations.

In September 2005, the Inter-American Court of Human Rights became the first international tribunal to find unequivocally that the prohibition on racial discrimination applies to nationality. In a landmark judgment, Yean and Bosico v. Dominican Republic, it ruled that the DR's discriminatory application of its constitution, citizenship and birthregistration laws and regulations rendered children of Haitian descent stateless and unable to access equal protection before the law. The Court affirmed that: "Although the determination of who is a national of a particular state continues to fall within the ambit of state sovereignty, states' discretion must be limited by international human rights that exist to protect individuals against arbitrary state actions. States are particularly limited in their discretion to grant nationality by their obligations to guarantee equal protection before the law and to prevent, avoid, and reduce statelessness."2

Notwithstanding that it is a legally binding decision, the Court's ruling had the opposite of its intended effect at the national level. Even before Yean and Bosico, in 2004 the government passed a migration law that expanded the definition of "in transit" to include all "non-residents", a broad category which included anyone who could not prove their lawful residency in the country. In this way the meaning of the nationality provision of the constitution was changed without changing its wording. After Yean and Bosico, application of this law was stepped up. Although intended to be applied prospectively, the Dominican civil registry agency (JCE) began using it retroactively to withdraw citizenship from Dominicans of Haitian descent whose nationality it had previously recognised.

On 26th January 2010, the DR adopted a heavily revised constitution which accords citizenship only to children of "residents" born on Dominican soil. Thus individuals born in the DR after January 2010 who do not have documentary proof of their parents' Dominican citizenship or legal residency no longer have the right to Dominican nationality, as their parents are now categorised as non-residents - regardless of how long they or their families have lived in the DR, which might extend to generations.

Equally disturbing, it is now government-issued documentary proof of legal residency that determines what rights an individual has, rather than real events. An individual's parents or grandparents may have had every right to citizenship under the earlier Dominican constitution, yet been denied that proof due to bureaucratic or logistical failings of the state, or discrimination. The new constitution thus elevates the historic actions of the state - even though they may have been wrong or flawed at the time they were committed - to be determining factors of the rights of individuals today. …

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