Soy Dominicano - the status of Haitian descendants born in the Dominican Republic and measures to protect their right to a nationality.

Author:Hannam, Monique A.
 
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"I have no country. What will become of me?" (1)

Abstract

On September 25, 2013, the Constitutional Tribunal of the Dominican Republic retroactively interpreted the Dominican Constitution to deny Dominican citizenship to children born to irregular migrants in Dominican territory since 1929. The tribunal's decision disproportionately affects approximately two hundred thousand persons of Haitian descent. In general, states have the right to determine their nationality criteria. However, the Dominican Republic violated international law by arbitrarily and discriminatorily depriving the Haitian descendants of their Dominican nationality and by increasing the incidence of statelessness. The international community should intervene urgently and decisively on behalf of the Haitian descendants. This Note proposes specific ways in which stakeholders, such as the United Nations High Commissioner for Refugees (UNHCR), Caribbean Community and Common Market (CARICOM), Organization of American States (OAS), and the United States, should intervene to persuade the Dominican government to pass proper remedial nationality legislation. Moreover, after concluding that the recent legislative developments in the Dominican Republic are insufficient to bring the state into compliance with its international law obligations, this Note proposes more robust legislative reform and recommends continued international pressure.

Table of Contents I. Introduction II. Rock and a Hard Place: The Nationality Law of the Dominican Republic and Haiti A. Nationality Law of the Dominican Republic before and after Pierre B. Haiti's Jus Sanguinis Nationality Framework III. Haiti and the Dominican Republic: Economic Conditions and Relations IV. International Law on Nationality A. Nationality Under International Law: Jus Sanguinis, Jus Soli, and Hybrid Criteria B. The Individual's Right to a Nationality and the State's Obligation to Prevent Statelessness V. Analyzing the Haitian Descendants' Claim To Dominican Nationality A. Haitians Born in Dominican Territory Prior to the 2010 Constitutional Amendment Were Dominican Nationals B. The Pierre Decision Constituted Arbitrary and Discriminatory Deprivation of Nationality VI. The Role of Regional and International Organizations and the International Community A. Despite Recent Legislation, the State Continues to Violate International Law B. The OAS Challenge C. Diplomatic and Economic Pressure from CARICOM D. The Need for Urgent and Decisive UNHCR Intervention E. United States' Diplomatic and Economic Sanctions F. The Role of the United Nations in Facilitating International Consensus on the Nationality Attribution VII. Conclusion VIII. Appendix I. Introduction

On September 25, 2013, in a far-reaching, provocative ruling, the Constitutional Tribunal of the Dominican Republic relegated hundreds of thousands of Haitian descendants born in the Dominican Republic to a state of uncertainty, or worse, statelessness. (2) The case arose from Juliana Dequis Pierre's request for a Dominican (3) national identification card. (4) In 1984, two Haitian cane farmers welcomed the birth of Juliana Dequis Pierre in the Yamasa municipality of the Dominican Republic. (5) Under the 1966 Dominican Constitution then in effect, persons born in Dominican territory were entitled to Dominican nationality unless their parents were diplomats or foreigners in transit. (6) Believing she was thus entitled, Ms. Pierre applied to the Dominican authorities for a Dominican national identity card. When the authorities denied her application, she appealed to the Constitutional Tribunal. (7) To her surprise, the Constitutional Tribunal reinterpreted the 1966 Dominican Constitution to hold that illegal residents are "foreigners in transit," that Ms. Pierre's parents were illegal residents, and that as a result, Ms. Pierre was not entitled to Dominican nationality. (8)

The breadth of the Pierre decision raises serious issues. Beyond the narrow question of Ms. Pierre's entitlement, the Constitutional Tribunal held that children born to Haitian migrants in the Dominican Republic since 1929 were not entitled to Dominican citizenship since their parents were "in transit." (9) This raises questions regarding the duty of the Dominican Republic to respect the Haitian descendants' right to a nationality under international law and to apply Dominican nationality law in a nondiscriminatory manner. Several international and regional organizations expressed their concern that the decision jeopardizes the human rights of the Haitian descendants. (10) The historically acrimonious relationship between the Dominican Republic and Haiti and the perception that anti-Haitian discrimination is pervasive and ingrained in Dominican culture fuel this concern. (11) The situation is tense and volatile, thus demanding urgent and decisive international intervention.

This Note will explore the implications of the Pierre decision in light of the international law on nationality and statelessness, the sovereign rights of states to protect their economic interests, and the historically tumultuous nature of the Haitian-Dominican relationship. The Note's scope is limited to those Haitian descendants who were born in the Dominican Republic. Part I provides an in-depth examination of the Constitutional Tribunal's decision and the resulting Dominican law on nationality, (12) as well as Haiti's nationality framework. Part II explores the economies of Haiti and the Dominican Republic and the highlights of their historical and contemporary relationship. Part III analyzes the international and regional law on nationality and statelessness binding on the Dominican Republic in order to determine whether the state has violated international law. After examining laws adopted during the revision of this Note and finding them inadequate to bring the Dominican Republic into compliance with international law, Part IV proposes that the members of international community--in particular the Organization of American States (OAS), United Nations High Commissioner for Refugees (UNHCR), Caribbean Community and Common Market (CARICOM), and the United States--take concrete steps to protect the rights of the Haitian descendants. Finally, Part V concludes by recognizing the need to balance the rights of the Haitian descendants against the rights of the Dominican Republic and proposing more appropriate remedial action.

This Note takes a dynamic approach to assessing the nationality crisis and will refer to treaties and cases without regard to chronological order. For a timeline of the major relevant events referred to in this Note, see Appendix. (13)

  1. Rock and a Hard Place: The Nationality Law of the Dominican Republic and Haiti

    1. Nationality Law of the Dominican Republic before and after Pierre

      Prior to the 2010 Amendments, the Constitution of the Dominican Republic granted nationality under a fairly generous jus soli regime. From 1929 until 2009, the constitution conferred Dominican nationality on all persons born within Dominican territory, except for children of diplomats and "those who are in transit." (14)

      Though the 2010 amendments recognized the Dominican nationality of persons born during the jus soli regime, Haitian descendants complained that Dominican state authorities consistently denied birth certificates to their children who were born in the Dominican Republic. (15) When three Haitian parents brought this issue before the Inter-American Court of Human Rights, the Dominican government countered by stating that by virtue of "being born on Dominican territory, the children had the right to opt for [Dominican] nationality and never lost this privilege." (16) According to the state, its authorities denied birth certificates because the petitioners in the case failed to present the requisite documentation for late birth registration. (17) Thus, the Dominican Republic at one point admitted that children born in its territory had a right to Dominican nationality regardless of the migratory status of their parents.

      In the scathing Yean & Bosico decision that resulted, the Inter-American Court of Human Rights found that Dominican nationality law granted those born in Dominican territory Dominican nationality. (18) The Court held that the Dominican Republic violated the Inter-American Convention on Human Rights (IACHR) by depriving those born in Dominican territory Dominican nationality and ordered the state to adopt a simple, accessible, and reasonable procedure for the children to acquire Dominican nationality. (19)

      In response to Yean & Bosico, the Dominican Republic amended its constitution to make children born to illegal residents ineligible for Dominican nationality. (20) Proponents and opponents hotly debate the motivation behind the amendment, with the former pointing to the burdens illegal Haitian immigrants impose on the Dominican infrastructure and economy and the latter identifying evidence of xenophobia and anti-Haitian rhetoric. (21) The 2010 Constitution of the Dominican Republic, currently in force, provides,

      Dominicans are:

      (1) Sons and daughters of a Dominican mother or father;

      (2) Those who enjoyed the Dominican nationality before the entry into effect of this Constitution;

      (3) The persons born in [the] national territory, with the exception of the sons and daughters of foreign members of diplomatic and consular delegations, [and] of foreigners ... in transit or residing illegally in [the] Dominican territory. Any foreigner defined as such in the Dominican laws is considered a person in transit. (22)

      On its face, the 2010 constitution abides by the principle of nonretroactivity since it does not retract Dominican nationality that a previous constitution conferred. (23) The new category for children born in Dominican territory to illegal residents suggests that illegal residents are not necessarily in transit; otherwise, this additional category would be superfluous...

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