The Risk of Statelessness: Reasserting a Rule for the Protection of the Right to Nationality.

• Author: Baluarte, David C.

A global effort to combat statelessness and defend the universal right to nationality is currently underway. Nevertheless, questions persist about the proper scope of the right to nationality, the appropriate form of statelessness protection, and the legal limits of state discretion to deny or deprive an individual of nationality. These questions have animated a heated transnational debate about statelessness in Hispaniola, where the government of the Dominican Republic has designed a legal system that excludes persons of Haitian descent from Dominican nationality. Central to this conflict is a question about whether actions by the Dominican state leave persons of Haitian descent stateless--without nationality anywhere in the world. This question has been the subject of a decade-long dialogue between the Inter-American Court of Human Rights and the Dominican justice system, which have expressed manifestly contrary views about the existence of statelessness in Hispaniola. In its most recent decision on the matter, the Inter-American Court declared that the Dominican state has an obligation to grant nationality to children born in its territory who face a "risk of statelessness." This Article is the first to explore this doctrinal development, and it raises both legal and practical concerns regarding this new rule of protection. This Article warns of potential parallels between the "risk of statelessness" and "de facto" statelessness, which is a category unprotected under the international law of statelessness. It argues for the continued use of legal statelessness as the definitive trigger for statelessness protection and for the establishment of a standard of proof that will permit a determination of statelessness for persons who have disputed or unresolved nationality claims.

TABLE OF CONTENTS INTRODUCTION I. THE HUMAN RIGHT TO NATIONALITY AND STATELESSNESS PROTECTION A. The Evolution of Nationality as an Individual Right B. International Protection for Stateless Persons II. THE EMERGENCE OF THE "RISK OF STATELESSNESS" DOCTRINE IN HISPANIOLA A. Nationality Rights and Statelessness in Hispaniola B. A Clash Over the Meaning of Statelessness C. Expelled Dominicans and Haitians vs. Dominican Republic III. CONSIDERING RISK WITHIN THE STATELESSNESS DETERMINATION PROCESS A. Avoiding the De Facto Statelessness Dilemma B. Returning to the Statelessness Determination C. A Role for the Risk of Statelessness CONCLUSION INTRODUCTION

Events in recent years have revealed large numbers of people who have no nationality anywhere in the world and who suffer myriad violations of their human rights as a result of this acute vulnerability. The United Nations High Commissioner for Refugees (UNHCR) estimates that there are at least ten million stateless persons globally, (1) and efforts to map stateless populations have identified significant challenges related to statelessness in every region of the world. (2) A common characteristic of these stateless populations is the marginalization they suffer, often intentionally engineered by the state that they inhabit, and the vulnerability that accompanies an existence without legal identity or protection. (3) Stateless persons often do not have basic identity documents, and their access to education, health services, and employment opportunities can be elusive. (4) Stateless persons are often targeted by security officials and immigration authorities, and are more likely to be subjected to arbitrary detention and expulsion. (5) Moreover, discrimination and the threat of physical violence seem to characterize the daily experience of many stateless persons. (6)

At the core of the challenge of addressing statelessness is the tradition of state control over the means of nationality acquisition and divestment. States have long considered their authority over the rules of membership in the nation to be among their most inherent powers. (7) However, when the United Nations proclaimed in the Universal Declaration of Human Rights that the right to a nationality was among the core human rights that member states committed to respect and defend, (8) the sovereign grip on nationality began to loosen. This was because the human right to nationality included both a guarantee of nationality to all and a prohibition against the arbitrary deprivation of that right. (9) Less than a decade later, a regime for the international protection of stateless persons was created in furtherance of the universal protection of the right to nationality. (10) Nevertheless, many states have viewed the statelessness protection regime with skepticism, and resisted international control over what they consider to be a sovereign matter.

One major situation of statelessness is currently playing out on the island of Hispaniola, where the right to Dominican nationality for the children of Haitian migrants has been the topic of heated debate for decades. On one side of the debate, human rights advocates have argued that persons born to migrants in the Dominican Republic have acquired Dominican nationality under the Constitution as a matter of birthright. (11) On the other, Dominican authorities have argued that an exception to the Constitutional rule of birthright nationality excludes from Dominican nationality the children of non-resident migrants, the vast majority of whom are Haitian. (12) For these children with a disputed claim to Dominican nationality, much is at stake, including access to education, prospects for employment, legal identity, and protection from the collective expulsions that have swept the Dominican Republic for years. (13)

A main point of contention in the Dominican nationality debate is whether children of Haitian descent who are denied Dominican nationality are left stateless. This is more than semantics; it is significant both politically and legally if this population is classified as stateless. In political terms, it matters whether Dominican-born persons of Haitian descent are left stateless if they are denied Dominican nationality because stateless persons are covered by the mandate of the UNHCR. (14) The UNHCR's engagement in any such situation brings to bear technical and financial assistance that may not be available otherwise, as well as legitimacy in political spheres. (15) In legal terms, it matters whether Dominican-born persons of Haitian descent are stateless because the law of statelessness requires a grant of nationality in the place of birth if a child would otherwise be stateless, and largely prohibits deprivation of nationality that leaves a person stateless. (16)

Perhaps because of the political and legal importance of the statelessness classification, each side of the nationality debate in the Dominican Republic takes a position that flatly contradicts the other. (17) Specifically, the nationality rights movement argues that statelessness is widespread in Hispaniola, while Dominican authorities deny its existence. (18) The two sides of this debate were articulated in the 2005 exchange between the Inter-American Court of Human Rights (Inter-American Court) and the Dominican Supreme Court of Justice (SCJ). That year, the Inter-American Court decided The Girls Yean and Bosico v. Domincan Republic, in which it found that the child of a Dominican mother and a Haitian father who had been denied a Dominican birth certificate had been left stateless. (19) The SCJ reviewed the statelessness question just a few months later and found there to be no problem because the children of Haitians born in the Dominican Republic derived Haitian nationality from their parents under the Haitian Constitution. (20) The contrary positions of these two tribunals have characterized the debate for nearly a decade. (21)

This debate evolved after the Constitutional Court of the Dominican Republic issued a decision that nullified Dominican nationality for more than 130,000 persons of Haitian descent in 2013. (22) The Constitutional Court reiterated the reasoning of the SCJ from years earlier, finding that its decision did not pose statelessness problems because denationalized children of Haitian descent derived Haitian nationality from their parents. (23) The Inter-American Court responded to the decision of the Constitutional Court the next year in Expelled Dominicans and Haitians v. Dominican Republic, finding human rights violations stemming from the denial of Dominican nationality documents to persons of Haitian descent born in Dominican territory. (24)

With regard to the ongoing debate on statelessness, the Inter-American Court took a novel analytical approach and extended protection under the international law of statelessness to individuals who face a "risk of statelessness." (25) Specifically, the Inter-American Court placed the burden on the Dominican state to demonstrate that persons who had been born in the Dominican Republic had access to Haitian nationality. (26) In finding that the Dominican Republic had not met this burden, and that certain individuals of Haitian descent faced a "risk of statelessness," the Court found a violation of the right to nationality and ordered the Dominican Republic to issue Dominican nationality documents. (27) In so doing, the Court extended a well-established rule of protection that requires a state to grant its nationality to stateless children born in its territory, such that the rule now encompasses children who are born at "risk of statelessness."

This Article argues that in its notable effort to protect Dominican-born persons of Haitian descent from the systematic human rights violations that they face, the Inter-American Court stretched the international law of statelessness beyond its understood limits. Indeed, there is little disagreement at this point that the law of statelessness was designed to protect de jure stateless persons, who have no nationality under the operation of laws of any country. (28) To extend that body of law to protect...