Mobilisation against International Human Rights: Re-Domesticating the Dominican Citizenship Regime

By Marsteintredet, Leiv | Ibero-americana, January 1, 2014 | Go to article overview

Mobilisation against International Human Rights: Re-Domesticating the Dominican Citizenship Regime


Marsteintredet, Leiv, Ibero-americana


I.INTRODUCTION

On November 4, 2014, the Dominican Constitutional Tribunal declared that the country's adherence to the jurisdiction of the InterAmerican Court of Human Rights (IACtHR) was unconstitutional (TC 2014). The Dominican exit of the IACtHR was the last step in a more than ten years long legal battle over control over the Dominican citizenship regime. Whereas the Inter-American System of Human Rights since 1998 have argued that the Dominican authorities should and must respect their ius soli right to citizenship, Dominican elites in political parties, congress, government and courts have attempted to curtail and restrict ius soli citizenship. This article studies the legal and institutional mobilization in the Dominican Republic against international human rights, and its attempts to redefine take back domestic control over the country's citizenship regime. Citizenship regime in this article refers narrowly to the rules, laws and regulations that provide the boundaries of inclusion and exclusion to membership of the state, or the right to nationality or citizenship within the state (for a broader definition, see Jensen and Papillon 2000).

The Dominican exit of the IACtHR is not the explanandum in this article, the goal is rather to focus on the various developments in the domestic mobilisation against human rights that eventually ended in this exit. I argue that the domestic mobilisation against human rights first and foremost had as a goal to regain domestic control over the citizenship regime. By focusing on the legal mobilisation against international human rights, and the groups that I call the pro-violation constituency (inspired by Cardenas 2010), I hope to shed some light on the causes of backlash against international human rights, and the conditions for compliance to decisions taken in international human rights tribunals.

The backdrop for the mobilisation against international human rights and for legal changes in the Dominican citizenship regime has been the continued attention to the rights situation of Haitian migrants and Dominican-Haitians living in the Dominican Republic in the InterAmerican Commission of Human Rights (the Commission) and in particular, the Yean and Bosico case in the IACtHR (CIDH 2005, 2006).1 The key contentious issue in the Yean and Bosico case has been the birthright (ius soli) to Dominican citizenship and whether the Dominican Republic under its 1966 Constitution and the American Convention had the right to exclude Dominican-born children of undocumented migrants and Haitian labour-migrants from the birthright to citizenship. The Dominican Republic argued that children of these groups were not entitled to citizenship despite being born on Dominican soil, whereas the IACtHR in the Yean and Bosico case, and repeated strongly in the case of Expelled Dominicans and Haitians (CIDH 2014), argued that this policy was discriminatory, against national laws and the constitution, and in breach of several articles of the American Convention. The IACtHR also stated as a principle that the children could not inherit the illegal status of their parents (Culliton-González 2012) and the Yean and Bosico case was the first in the IACtHR dealing with citizenship and considered by UNHCR as the most important legal case on citizenship and statelessness worldwide in 2005 (see Wooding 2008).

Despite the State's obligation to comply with the IACtHR sentence and IACtHR's understanding of the Dominican citizenship regime, large parts of the Dominican political elites mobilised domestically since the early 2000s to counter what was perceived as an attack on national sovereignty and the loss of control over the citizenship regime. Tracing the legal results of this mobilisation it is possible to point to two distinct tracks: First, new constitutional and regular laws and administrative orders increased the violations of human rights against in particular DominicanHaitians by stripping people of this group of their citizenship; and second, the country's commitment to the IACtHR was weakened through several sentences in the high courts of the country, culminating in the country's withdrawal from the IACtHR. …

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