× Introduction~ Institute on Statelessness and Inclusion
An interview with Benyam Dawit Mezmur, Chairperson of the United Nations Committee on the Rights of the Child~ Maria Jose Recalde Vela
Using the CRC to help protect children from statelessness in Serbia~ Praxis Serbia
Erduan - an interview~ NGO Praxis Serbia
Advancing children's right to a nationality through the UN Committee on the Rights of the Child~ Francesco Cecon
Activating the CRC - tools for civil society engagement~ Institute on Statelessness and Inclusion
Human rights and stateless children~ Hernan Vales
The boy~ Amal de Chickera
Discrimination and childhood statelessness in the work of the UN human rights treaty bodies~ Peggy Brett
Gender and birth status discrimination and childhood statelessness~ Betsy L. Fisher
Axin - an interview~ Thomas McGee
Using the UN system to advocate for nationality law reform in Lebanon~ Bernadette Habib
Using the Inter-American regional framework to help stateless children in the Dominican Republic~ Francisco Quintana
Using the African regional framework to realise children's nationality rights in Kenya~ Mustafa Mahmoud Yousif
Sultan - an interview~ Mustafa Mahmoud Yousif
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Francisco Quintana


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Using the Inter-American regional framework to help stateless children in the Dominican Republic

Francisco Quintana

In 2016, the Center for Justice and International Law (CEJIL) celebrates its 25th anniversary. As we reflect on more than two decades of work protecting human rights through strategic litigation in the Americas, our efforts to advance the right to nationality stand out. CEJIL’s work in the Dominican Republic began almost 20 years ago, as we grew increasingly concerned about the discrimination faced by Dominicans of Haitian descent, particularly regarding their right to nationality. Together with local counterparts, we decided to bring a case before the Inter-American Human Rights system. The American Convention on Human Rights (ACHR) protects the right to nationality, but the Inter-American Court had never analysed this right in a contentious case.

In 1998, CEJIL, along with the Movimiento de Mujeres Dominico-Haitianas (MUDHA), filed a petition on behalf of two Dominican girls of Haitian descent, Violeta and Dilcia, who were denied access to education due to their inability to attain identity documents. Their case represented the situation of thousands in the Dominican Republic who were unable to prove their Dominican nationality. The Inter-American Court ruled on the case in 2005. The Court determined that the deprivation of access to birth certificates on a discriminatory basis constituted a violation of the right to nationality of both girls. Critically, the Court also held that when a child that is born in the country is stateless, governments are required to confer nationality in order to prevent statelessness. This decision represented a landmark moment in the fight against statelessness in the Americas.

Unfortunately, the decision did not result in domestic efforts to improve the living conditions of the affected population in the Dominican Republic. Instead, the situation worsened through the implementation of policies and legislative reforms that further restricted the right to nationality, excluding those born to parents with irregular migration status. The litigation of a second case became inevitable. Again, in partnership with MUDHA, CEJIL undertook the litigation of a second case involving the arbitrary expulsion of Dominican and Haitian citizens from Dominican territory. This second effort, however, was also followed by a negative response from the Dominican government. In September 2013, the Constitutional Court of the Dominican Republic issued a resolution that retroactively changed the constitutional interpretation of the ‘in transit’ clause that limits the acquisition of nationality. This decision resulted in the denationalisation of some 200,000 people. In 2014, the Inter-American Court issued its decision on the Expelled Persons case, which did not focus exclusively on stateless children but reaffirmed that a child’s right to nationality does not depend on the migratory status of their parents.

While Dilcia and Violeta finally have their birth certificates, there are now many others facing the same problems they faced in 1998. CEJIL acknowledges the need to adopt a comprehensive approach that goes beyond litigation. Together with partner organisations, CEJIL launched the Americas Network on Nationality and Statelessness (Red ANA in Spanish). The Network seeks to build upon the legal advances in the Inter-American system by highlighting concrete examples of State efforts to bring their national legal systems into compliance with the legal standards our work helped establish .

 

Council of Europe efforts in the area of childhood statelessness

In Europe also, children’s right to a nationality has found a place within regional legal frameworks. The work of the Council of Europe (CoE) is particularly relevant. In March 2016, the Parliamentary Assembly of the Council of Europe adopted a Resolution on the need to eradicate statelessness of children asking the Member States to take steps to eradicate childhood statelessness, which was preceded by a Report and Opinion on this issue. In this Resolution, the Parliamentary Assembly refers to a number of relevant CoE instruments concerning the avoidance of statelessness, including the European Convention on Nationality (ECN) – a key instrument in this regard – as well as to the Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession, which could help to address statelessness among children in the specific context of state succession. Efforts relating to childhood statelessness can also be found in the case law of the European Court of Human Rights encompassing significant cases such as that of Genovese v Malta (2012) and of Mennesson v France (2014). A clear expression of the CoE’s commitment to addressing childhood statelessness is the Recommendation of the Committee of Ministers to Member States on the nationality of children, which was adopted in 2009 (CM/Rec(2009)13). 10 out of the 23 principles included in this non-legally binding Recommendation concern reducing statelessness of children specifically. Moreover, childhood statelessness seems to be a continuous concern to the current Commissioner for Human Rights. Efforts to address childhood statelessness at the regional level are thus strongly present in the CoE.