Dominican Republic Court Ruling Raises Mass Statelessness Threat

The Open Society Justice Initiative is urging the government of the Dominican Republic to ensure that none of its citizens is rendered stateless, following a legally-flawed constitutional court ruling that envisages the denationalization of hundred of thousands of Dominicans of Haitian descent.

The 11-2 decision of the constitutional court, dated  September 23, found that the provision on citizenship in the 1929 Dominican constitution, which recognizes as a citizen anyone born in the country, should not apply to the children of parents who were not “legal residents” at the time of their birth, on the basis that their parents were “in transit”.

It further ruled that as a result these children, and subsequent generations born on Dominican soil, are excluded from the citizenship guarantee provided by the constitution.

The order effectively strips citizenship rights from the descendants of Haitian migrants settled in the Dominican Republic since the start of the 20th century, despite the fact that the current constitution declares as Dominican anyone who enjoyed Dominican citizenship prior to 2010. The vast majority of these individuals will be left stateless.

“We are deeply troubled by this ruling,” said James A. Goldston, executive director of the Open Society Justice Initiative. “It threatens a massive denationalization that will have a potentially devastating impact on hundreds of thousands of Dominican citizens. It risks rendering tens of thousands of people stateless, and excluding them from basic state services including access to health care and education.”

The Justice Initiative notes that the UN High Commissioner for Human Rights has called on the government “to take all necessary measures to ensure that Dominican citizens of Haitian origin are not deprived of their right to nationality in accordance with the country’s international human rights obligations.”

Goldston noted that the order also involved retroactive application of the law which is impermissible under both Dominican and international law.

In addition:

• The order  directly contravenes a 2005 judgement of the Inter-American Court of Human Rights. Its decision  in the Yean and Bosico v. Dominican Republic case, ruled that the migratory status of the parents can never constitute justification for the deprivation of nationality and that children cannot inherit the migratory status of their parents.

  The court observed that “to consider that a person is in transit, irrespective of the classification used, 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.”

  The constitutional court, in direct contravention to the Inter-American Court’s ruling, not only conflates the concept of in transit with that of non-residency but also orders the application of such a requirement to be applied retroactively for over 80 years.

• The ruling also orders a highly disturbing procedure for its implementation that would constitute a breach of international prohibitions against racial and ethnic discrimination. It proposes the identification and listing of all citizens of ‘foreign origin’ from the Dominican Civil Registry and the creation of a second list for those who under the new criteria given by the court are considered to be mistakenly registered as Dominicans. The names of people listed in this new regime will then be administratively transferred to foreigners’ books and notified to the foreign ministry so that the ministry informs the affected individuals and the supposed correspondent embassy.

  The Justice Initiative notes that state sovereignty over nationality is most clearly restrained by the prohibition against racial and ethnic discrimination and this principle is integral to all international and regional human rights instruments. In addition, the procedures ordered in the constitutional court’s ruling clearly violate the Dominican Republic’s obligations of well-established human rights principles, particularly the universal anti-discrimination norm.

• The Justice Initiative further expresses concern that the judgment employs a definition of citizenship that is impermissibly discriminatory, referencing racial and linguistics features in demarcating citizenship. The Dominican Republic is a state party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and as such it has human rights obligations to ensure equal protection before the law in the granting of nationality. More broadly it must eliminate racial discrimination in all its forms and manifestations.

There were two dissenting opinions. Judge Isabel Bonilla argued that the decision to consider as ‘in transit’ individuals who resided in the Dominican Republic for years is an erroneous interpretation of the constitution: “As a consequence of this restrictive interpretation and its retroactive application, this ruling declares the plaintiff as a foreigner in the country where she was born. [A]nd its failure to recognize her right to reside in her country of origin, which is where she has created social and cultural links, constitutes on itself a penalty she is forced to pay due to her parents’ migratory status.”

Judge Katia Jiménez argued that the decision leaves the plaintiff and the thousands of other people affected by the effects of this ruling, in a state of judicial insecurity and, most importantly, stateless. Both dissenting judges noted that the ruling is a flagrant violation of the jurisprudence of the Inter-American Court of Human Rights and directly harms human dignity.

Since 2005 the Justice Initiative has been systematically challenging the Dominican Republic’s discriminatory nationality policies through documentation, litigation, advocacy and legal capacity development.