The perpetuation of childhood statelessness in the Dominican Republic
In 2013, the Constitutional Court of the Dominican Republic (DR) issued a decision that reinterpreted the Dominican Constitution so as to retroactively exclude the children of unauthorised migrants born in the country since 1929 from the regime of jus soli nationality acquisition. This effectively denationalised more than 100,000 people who the United Nations High Commissioner for Refugees (UNHCR) have declared stateless, and complicated an already troubling situation of childhood statelessness. Widespread criticism both domestically and on the international level compelled the Dominican State to craft a legislative response to either restore nationality or provide a path to naturalisation for persons who had been born in the DR. However, Dominican-born persons of Haitian descent and their children continue to face a range of impediments to their rightful acquisition of Dominican nationality.
Stateless children in the DR face substantial barriers to their integration into society and full realisation of their human potential. The most immediately apparent challenge stateless children face is the difficulty in accessing education due to their lack of proper nationality documents. Blocking access to the fundamental right to education serves as a harbinger for the social exclusion that awaits children who grow up on the margins of Dominican society. They see others in their community unable to marry, own property, vote, or register their own children, and it can crush their burgeoning desire to ‘be someone.’ This feeds into a general sense of insecurity, which manifests most concretely during the collective expulsions conducted in communities populated by persons of Haitian descent with no regard for the rule of law or human dignity.
Litigation has been an important part of the strategy that the advocacy community has elaborated over the years to challenge the injustice of childhood statelessness in the DR. At a regional level, the Inter-American Court of Human Rights (IACtHR) has issued two decisions that have specifically discussed the human rights dimensions of Dominican nationality law and policy. In The Girls Yean and Bosico v Dominican Republic and Expelled Dominicans and Haitians v Dominican Republic, the Court has clarified important human rights norms and ordered legal reform with the aim of addressing the most brutal aspects of childhood statelessness. The importance of these decisions cannot be understated, but observers have also raised reasoned concerns about the aggravating effect of international condemnation which has fuelled nationalist fervour in the DR.
This essay will provide a contemporary history of the human rights struggle for Dominican nationality and review the important contributions of the IACtHR so as to better understand that tribunal’s leadership in developing norms for the protection of stateless children. The essay will also consider critiques of this Inter-American litigation and balance the added value of the efforts to compel statelessness protection against the harsh response it has received. Concluding remarks will consider the significance of these normative developments and strategic insights on the global stage.
2. An Overview of the Nationality Crisis in the Dominican Republic
The centrepiece of the nationality debate in the DR has been the constitutional provision that declared as Dominicans, all persons born in the national territory with the exception of those born to foreigners in diplomatic service or foreigners in transit. This same provision, virtually unaltered, can be found in every Dominican Constitution from 1929 until the constitutional reform of 2010. The main issue of contention has been the scope of the ‘in transit’ exception to jus soli nationality.
By the 1990s, it was well-documented that many Dominican civil registry officials refused to issue birth certificates to the children of Haitian migrants born in the national territory because of their Haitian parentage. Dominican civil society mobilised, pressured local civil registries to process applications in accordance with the law, and even filed legal cases to protect their right to Dominican nationality. In 2003, an appeals court in the DR found that the ‘in transit’ exception could not reasonably encompass a large irregular migrant population, and must be construed in a limited manner. While this reflected the commonly held understanding of the nationality provision of the Constitution at that time, powerful dissenting voices continued to press for a more expansive interpretation.
In 2004, the Dominican legislature passed an immigration law that provided the first direct legislative interpretation of the ‘in transit’ concept for the purposes of nationality acquisition under the Dominican Constitution. That law provided that all ‘non-residents’ were foreigners in transit, and it listed nine different categories of non-residents, including temporary workers and border residents, among others. Dominican civil society organisations filed a legal action challenging the constitutionality of the 2004 immigration law. The Dominican Supreme Court of Justice upheld the law as constitutional in 2005, concluding that the legislature acted within its authority to interpret the Constitution, and specifically finding that the law was not discriminatory and that it posed no risk of producing statelessness.
2.1 A campaign to deprive Dominicans of Haitian descent of nationality
In 2007, mandated by the 2004 immigration law, the Central Electoral Board (CEB) created a separate birth registry for the inscription of non-nationals born in the national territory. At the same time, that entity issued guidance known as Circular 17 and Resolution 12 to civil registry officers directing them to review and seize birth certificates with irregularities and initiate nullification proceedings in cases where persons had been mistakenly registered as nationals. Pursuant to this guidance, when an individual came to the civil registry to request a certified copy of his birth certificate for school, or renew her national identity card known as a cédula, officers would make a determination whether the individual may have foreign parents and hold their documents for further study. In effect, the CEB guidance began the retroactive application of the legal framework set forth in the 2004 immigration law, and led to the deprivation of nationality of tens of thousands of Dominicans of Haitian descent.
Human rights advocates in the DR sounded the alarm bell, and international bodies that had been following the abusive nature of Dominican nationality policy began to denounce the denationalisations. There were claims that the 2004 immigration law, notwithstanding the 2005 decision from the Supreme Court of Justice, was indeed inconsistent with the Dominican Constitution, as well as international law obligations that bound the DR. The DR passed a new Constitution in 2010 with a revised nationality provision that excluded from birth right nationality the children of “foreigners in transit or residing illegally in the Dominican territory”, and stated explicitly that "foreigners in transit" were whatever Dominican law declared.
The 2010 Constitution also established the Constitutional Court, which three years later heard the case of Juliana Deguis Pierre, a woman whose cédula had been seized by the civil registry in accordance with the CEB guidance. In its now infamous decision 168-13, the Constitutional Court concluded that the ‘in transit’ exception had always been intended by legislators to cover four groups of non-immigrants, including temporary workers and their families. The Court ordered the CEB to review all births registered from 1929, which was the first year that the ‘in transit’ exception appeared in the Dominican Constitution, until 2007 to ensure that no children of foreigners ‘in transit’ had mistakenly been registered as Dominican nationals.
2.2 The fallout from the 2013 ruling and the need for a legislative response
The 2013 Constitutional Court decision triggered widespread outrage against what was perceived as a racially motivated reinterpretation of the Constitution to retroactively strip the citizenship of Dominicans of Haitian descent in contravention of human rights protections against discrimination and deprivation of nationality. UNHCR estimates that 133,770 people were left stateless as a result of the decision, though initial estimates were even higher. The consistent response of the DR on the question of statelessness was that Dominicans of Haitian descent who lost their Dominican nationality, like Juliana Deguis Pierre, were not stateless because they had acquired Haitian nationality jus sanguinis. However, there are a number of legal and bureaucratic impediments to these individuals acquiring Haitian nationality, particularly those who had lived a lifetime with Dominican nationality documents. Moreover, this rejoinder by the Dominican government was insufficient to appease international observers and rights groups.
A remedial response from the Dominican State became imperative, and in May 2014 the Dominican legislature unanimously passed Law 169-14 as its proposed solution to the crisis. This law ordered the reinstitution of Dominican nationality to approximately 55,000 individuals who had acquired Dominican nationality by birth in the national territory, but who were denationalised pursuant to the order of the Constitutional Court (“Group a”). The law also created a path to naturalisation for those individuals who had been born in the DR prior to 2007, but had never acquired nationality documents (“Group b”).
Group b, as it has become known, was and continues to be quite controversial. These are individuals who considered themselves Dominican nationals by birth right, and the prevailing interpretation of the Constitution supported this understanding at the time of their birth. The solution that they naturalise through a procedure that required them to declare themselves Haitian nationals was unacceptable to many. Compounding the social and political implications of the proposed solution, bureaucratic complications and tight timeframes to initiate the naturalisation process for Group b resulted in only 8,755 applications. This number is far below initial estimates of the number of people who would qualify to naturalise under this provision of the law, which the Dominican government believed to be the order of 50,000. Accordingly, an unknown number of people remain in a legal limbo and are likely stateless.
3. Efforts to Protect the Right to Nationality through Inter-American Litigation
The IACtHR has issued two timely decisions on the nationality rights of Dominican-born persons of Haitian descent. The Girls Yean and Bosico v. Dominican Republic, handed down a year after the promulgation of the 2004 immigration law, held the DR internationally responsible for human rights violations committed in the refusal by Dominican authorities to register the births of two young girls. Expelled Dominicans and Haitians v. Dominican Republic, handed down a year after the 2013 Constitutional Court decision, found the DR to have violated its international human rights obligations when it conducted collective expulsions of Dominicans and Haitians. These two landmark decisions by the IACtHR advanced important norms of protection against childhood statelessness at strategic moments, and each set off an international relations firestorm.
3.1 The Girls Yean and Bosico v. Dominican Republic
The case concerned the plight of Dilcia Yean and Violeta Bosico, two girls born in their homes in agricultural communities known as bateyes who were taken by their mothers to register their births when they were small children. The girls’ mothers were Dominican nationals in possession of cédulas and their fathers were Haitian migrant workers. Civil registry officials found that the girls’ mothers did not provide sufficient documentation for late registration and denied the requests. In declining to register the girls and issue them birth certificates, the civil registry denied the girls essential evidence of Dominican nationality that they needed to study, thereby limiting their prospects for social mobility while simultaneously condemning them to a life on the margins of Dominican society.
The Court began its analysis of this case by observing that the authority of States to determine who is a national “is limited, on the one hand, by their obligation to provide individuals with the equal and effective protection of the law and, on the other hand, by their obligation to prevent, avoid and reduce statelessness.” This statement of the law then drove the Court’s analysis, as it dug into both the questions of discrimination and statelessness.
The Court considered the actions by the civil registry in denying the girls’ applications for birth certificates, and found that officials had applied onerous documentary requirements not established in the law. The Court considered the context and history of anti-Haitian sentiment, and concluded that the documentary requirements were a pretext to deny the girls’ birth certificates because of their race, and that the denials were arbitrary and discriminatory. The Court concluded that the arbitrary denial of birth registration deprived the two girls of their Dominican nationality in violation of Article 20 of the American Convention. The Court further found that this deprivation of nationality had left the girls stateless, and that their vulnerability was compounded by their status as children.
Another important aspect of the case was the decision by the Court to take up an argument posed earlier in the proceedings by the Dominican State that the girls were not entitled to nationality because their fathers were foreigners ‘in transit’. The girls had certainly derived Dominican nationality from their mothers under the Dominican Constitution, but the question of the effect of the fathers’ Haitian nationality and status as migrant workers loomed large in the case. While the language of the Constitution was generally understood to provide a broad grant of jus soli nationality, there was no authoritative judicial interpretation of the ‘in transit’ exception at the time the case was filed. The mixed nationality of the girls’ parents gave the IACtHR the option to either decide the case without addressing the question of who was a qualifying foreigner, or to take the question up if deemed appropriate.
Ultimately, the IACtHR did address the question of who should qualify for Dominican nationality under the constitutional and legislative framework in broad terms, and this became one of the greatest contributions of the case. The Court cited a 2003 decision from a Dominican appeals court, decided after The Girls Yean and Bosico had been submitted to the jurisdiction of the IACtHR, that had interpreted the ‘in transit’ exception narrowly. It also found relevant a 1939 immigration regulation that indicated that the concept of transit suggested a stay of 10 days or less in the country. The IACtHR used this authority to conclude that “the State must respect a reasonable temporal limit and understand that a foreigner who develops connections in a State cannot be equated to a person in transit”.
In this way, the IACtHR addressed the responsibility of the Dominican State to guarantee its nationality to children born in its territory to Haitian parents. It found inappropriate the suggestion that the ‘in transit’ exception would be linked to migratory status, and it emphasised that birth in the territory should be the only relevant criteria in cases in which a child would not have a right to any other nationality. However, because the girls’ mothers were Dominican, these questions were not determinative of their claims to Dominican nationality. The next case decided by the Inter- IACtHR against the DR provided the opportunity to address the ‘in transit’ exception in analysing more complex nationality claims.
3.2 Expelled Dominicans and Haitians v. Dominican Republic
Petitioners in this case included four families and two individuals who had been the victims of collective expulsion from the DR to Haiti. This practice involved Dominican authorities rounding up entire communities on trucks and forcing them across the border to Haiti without process. The Court analysed the right to nationality with regard to two groups of petitioners: Dominican nationals whose nationality documents were disregarded by authorities at the time of their expulsion; and persons who had been born in the DR, but were unable to acquire nationality documents, and were subsequently expelled. This second group was similarly situated to the girls Yean and Bosico before they received their birth certificates, in that they had been born in the DR and had been denied birth registration. The main differences were that the parents of the petitioners in Expelled Dominicans and Haitians did not have Dominican nationality documents, and the Dominican State was actively arguing that they were not entitled to Dominican nationality as the children of foreigners ‘in transit’.
Victor Jean was the Dominican-born father of three Dominican-born children, who he cared for together with his Haitian wife at the time that they were expelled as a family from the DR to Haiti. Neither Mr. Jean nor his three children had acquired nationality documents and they asserted before the IACtHR that their right to Dominican nationality had therefore been violated. The Dominican State was adamant that Mr. Jean and his three children did not have a right to Dominican nationality because they had been born to foreigners ‘in transit’ as defined under Dominican law. The Dominican State further argued that the Jean family would not be left stateless without Dominican nationality, because they could all acquire Haitian nationality jus sanguinis.
The IACtHR proceeded to examine the human rights implications of the Dominican State’s failure to issue nationality documents to Mr. Jean and his children, examining each of its arguments for failing to do so in turn. The Court noted that the Dominican State relied on the 2005 Supreme Court of Justice decision and the 2013 Constitutional Court decision to support its claim that the Jeans were not nationals under Dominican law. The Court highlighted, however, that these decisions did not represent the prevailing understanding of jus soli nationality at the time the Jeans were born, such that the Dominican State was retroactively applying newly developed legal precedent to deny the Jeans’ right to nationality. Interestingly, the Court here acknowledged the Dominican State’s position that this was not discriminatory per se, but then turned to the Dominican State’s obligation to reduce statelessness.
The Court highlighted that the Dominican State itself recognised that it would have to guarantee Dominican citizenship to any children born stateless in its territory. The Court then examined the claim that the Jeans had acquired Haitian nationality jus sanguinis, and were not stateless. The Court criticised the State’s bare assertion that the Jeans had acquired nationality under the Haitian Constitution, finding that it had failed to demonstrate that the Jeans had acquired Haitian nationality because the State had not reconciled a number of contradictory laws. The Court found that the Dominican State’s retroactive application of the above cited legal framework to justify the denial of the Jean’s nationality claims when they had faced a risk of statelessness at birth constituted an arbitrary denial of their right to Dominican nationality. Here, the IACtHR took a tremendous step forward in the regional jurisprudence on the protection against childhood statelessness. Stopping short of actually declaring the Jeans stateless, as it had with the girls Yean and Bosico, the Court found that the risk of statelessness in conjunction with the Dominican State’s failure to adequately resolve the question of nationality had triggered the State’s obligation to guarantee nationality.
The IACtHR then took the very important step of analysing whether the 2013 Constitutional Court decision and the promulgation of Law 169-14 constituted a violation of the Dominican State’s obligation to ensure that its laws respect the right to nationality enshrined in the American Convention. The IACtHR found that the 2013 Constitutional Court decision violated both equal protection and the right to nationality of those petitioners who had previously acquired nationality despite their parents’ irregular status, where it unreasonably distinguished between the acquisition of nationality by regular and irregular migrants. The Court further found that Law 169-14 violated both equal protection and the right to nationality of the Jean family, because it forced them to accept alien status and gave them only the option to naturalise as the children of foreigners in transit.
3.3 Backlash against the Inter-American rulings
Both of the IACtHR rulings were met with staunch opposition from Dominican authorities. In 2005, after Yean and Bosico was decided, high government officials claimed that it served as evidence of a conspiracy by international actors to overwhelm Dominican sovereignty and force the DR to buffer the regional insecurity posed by the Haitian State. This notion of an international conspiracy fed into a nationalist narrative that gained steam in the lead up to the wave of denationalisations that began in 2007, and some have suggested that international human rights advocacy in primarily international fora before 2005 contributed more than anything to the hardening of Dominican nationality law and policy.
Such critiques are well-founded, and an absolute rejoinder is difficult to honestly articulate. At the same time, nationality practices had been deteriorating throughout the 1990s, and the law would have likely deteriorated along with such practices in time. What is also true is that nationality rights advocates within the DR developed comprehensive and complex policy advocacy and litigation strategies in the years following 2007. It is difficult to identify the specific role of Yean and Bosico in consolidating and reinforcing the efforts at the national level to confront the institutionalisation of discriminatory nationality policies, but few would deny the importance of that seminal case in this regard. Nevertheless, the die may have been cast when national strategic litigation efforts to end the denationalisations arrived before the newly established Dominican Constitutional Court that issued the fateful 2013 judgement.
The promulgation of Law 169-14, albeit limited in scope, did restore nationality to many and set forth a path to nationality for some. If this represents the negotiated solution produced through the transnational legal process, then the inadequacy of that solution has once again been laid plain by the IACtHR in the Expelled Dominicans and Haitians. Moreover, the IACtHR decisions continue to provide the legal platform for advocacy at all levels as we look to the future challenges of eradicating childhood stateless in the Dominican context.
Law 169-14 was an imperfect and incomplete solution for those individuals commonly referred to as Group b and their children. Together the IACtHR decisions provide a roadmap for how we should understand the legal rights of this population and the risk of statelessness it faces. UNHCR estimates that there are 133,770 stateless persons who were born in the DR to two foreign parents at a time they were believed to qualify for Dominican nationality, and as of yet, there is no estimate for the number of children they have reared in the country they always considered home.
Notably, under the jurisprudence of the IACtHR, everyone in this group is a Dominican national, both because that was the law of the DR at the time of their birth, and because they faced a risk of statelessness at birth that was unaddressed by the Dominican State. Sadly, the DR remains unwilling to engage in a real conversation about protection for stateless persons beyond Law 169-14, insisting that all persons of Haitian descent must be Haitian. Tragically, the problem of childhood statelessness threatens to become more severe as generations of persons with legitimate claims to nationality go unrecognised by the DR.
On review, the question as to whether regional and international litigation is an appropriate or effective means to address the problem of childhood statelessness in the DR merits real consideration. Moreover, this is a topic for earnest debate in any country where entrenched discrimination is one of the main drivers of statelessness. The problem of societal discrimination is deeply complex, and successes in combating that phenomenon are always incremental and debatable. The Dominican context is no exception, though the role of the rights-centred pronouncements of the IACtHR have played a unique role in both organising advocacy messages as well as lending legitimacy to the plight of Dominicans of Haitian descent. In the face of unrelenting persecution by the Dominican State, litigation continues to be an important tool, but it must be mindfully formulated and informed by past experience.