Stateless: The Case of Haitian Descendants Born in the Dominican Republic


International Law Matters is pleased to welcome this guest post from Luisa Pereira da Rocha Giannini.  Luisa is a second-year student studying law at the Centro Universitario La Salle do Rio de Janerio.  She earned her BA in International Relations in 2012.  She is fluent in English, Spanish, French, and Portuguese.  Follow her on twitter @LuisaGiannini

Luisa Pereira da Rocha Giannini

There is currently a legal debate in the Dominican Republic regarding the decision of the Constitutional Court on the nationality of Haitian descendants born in the Dominican territory.

Juliana Deguis Pierre became the face of the struggle of Haitian descendants who suffer the risk of becoming stateless. Juliana was born in the Dominican Republic in 1984.  In 2008, she went to the identification office with her birth certificate to request an identification card.  However, the office refused to issue one and retained her birth certificate because her surname demonstrated that her family had Haitian origins.

On December 10th, 2012, Juliana appealed to the Civil, Commercial and Labor Court in the First Instance of the Judicial District of Monte Plata for her right to a Dominican identification card. The Court, in 473/2012, refused Juliana’s case because she did not present her original birth certificate. Juliana then appealed to the Constitutional Court, the highest court in the Dominican Republic. The Constitutional Court also denied Juliana’s request and recommended that actions be taken with respect to all individuals who were in the same situation as Juliana in the country. The Constitutional Court ruled, in TC/0168/13, that all children of foreigners born in the Dominican territory after 1929 are not Dominican nationals.

Juliana’s parents were residents of the Dominican Republic.  They were hired to work on a sugar plantation and never returned to Haiti. However, according to the Constitutional Court, Juliana is the daughter of foreigners who were “in transit” in the Dominican Republic; therefore, they were not established in the country. This ruling was expressed under the justification of observing the rules of the constitution in force at the date of Juliana’s birth—the Constitution of 1966 (which was in force until 1994)—which, in Article 11.1, defined as a Dominican:

Every person born in the territory of the Republic, with the exception of the legitimate children of foreign residents serving in the country as diplomatic representatives or those who are in transit in it. [1]

This Constitutional Court’s ruling was controversial because it made about 200 thousand people stateless. However, many of those now stateless people have never traveled to Haiti. Experts—as well as two judges who voted against the decision—understand that the decision to use a law retroactively is a violation of law principles.

In 2005, the Inter-American Court of Human Rights (IACHR) condemned the practice of the Dominican Republic as discriminatory, and they considered the practice of the country to be an “illegal and arbitrary deprivation of liberty”. [2] Despite the reservations of the IACHR, in 2010, the Dominican government went ahead and approved a new constitution that states that the children of irregular immigrants, including temporary workers, born in the Dominican Republic will not be considered Dominicans.

Article 18. Nationality. It’s considered to be Dominican:

[…]

3.The people born in national territory, with the exception of children of foreign members of diplomatic and consular missions, of foreigners in transit or residing illegally in Dominican territory. It will be considered a person in transit any foreigner defined as such in Dominican law; [3]

On October 22, 2014, in a press release on the case of Dominican and Haitian People Expelled vs. Dominican Republic, the IACHR stated that the Dominican Republic:

When treating like aliens those people born in the Dominican territory whose parents are foreigners in irregular situation, established a discrimination in the light of the Inter-American Convention, in violation of the right to equality before the law and other rights received in the treaty […] such unlawful situation refers to parents, rather than people born in Dominican Republic. [4]

Also, the Court ordered the modification, by the Dominican Republic, of all laws that take away the national rights of the children of illegal immigrants. Furthermore, it stated that “its judgment is a form of reparation” and that the Dominican government should take the following measures:

i) take the necessary measures for the Dominican victims, according to the case, to be duly registered and provided with the necessary documentation to issue their identity and Dominican nationality.

[…] ii) take the necessary measures to ensure that a Haitian victim can reside or stay regularly in the territory of Dominican Republic […] vi) adopt domestic legal measures necessary to prevent that the Constitutional Court sentence TC/0168/13 […] continue to produce legal effects; viii) adopt legislative measures, including, if necessary, constitutional, administrative and other kind of measures necessary to regulate a procedure for birth registration that should be accessible and simple. [5]

 On November 4, 2014, the Constitutional Court issued a new statement, TC/0256/14, which defines that the Dominican Republic’s accession to the Inter-American Court was unconstitutional and therefore allows the Dominicans to question the decisions of the Court. The rejection of the IACHR happened only when the Court condemned the discrimination and deprivation of citizenship to people of Haitian descent who were born and live in the Dominican Republic.

On November 6, 2014, the IACHR condemned the ruling, arguing that “the judgment has no basis whatsoever in international law, and therefore it can have no effect”. [6] It further stressed that:

The Constitutional Court’s invocation of the exception contained in Article 46 of the Vienna Convention on the Law of Treaties—by which a manifest violation of a rule of its internal law that is of “fundamental importance” may be argued as invalidating its consent—is clearly incompatible with treaty law, particularly with the principles of good faith and estoppel. Under the principle of estoppel, a State that has adopted a certain position that has legal consequences may not subsequently adopt a different position that contradicts the first one and changes the grounds on which the other party based its actions. [7]

 Therefore, the Dominican Republic cannot refuse to comply with the decisions of the Inter-American Court of Human Rights.

Juliana Deguis Pierre finally received her identification card on August 1st, 2014, after six years of struggle for the recognition of her Dominican nationality. The United Nations High Commission for Refugees (UNHCR) says that the Dominican government could do the same thing for people in the same situation that Juliana was in. [8]

[1] Constitution of the Dominican Republic on November 29, 1966.

[2] http://internacional.elpais.com/internacional/2014/10/24/actualidad/1414111490_085037.html

[3] Constitution of the Dominican Republic, proclaimed on January 26. Published in Official Gazette No. 10561 of January 26, 2010.

[4] http://www.corteidh.or.cr/docs/comunicados/cp_28_14.pdf

[5] http://www.corteidh.or.cr/docs/comunicados/cp_28_14.pdf

[6] http://www.oas.org/en/iachr/media_center/PReleases/2014/130.asp

[7] http://www.oas.org/en/iachr/media_center/PReleases/2014/130.asp

[8]http://www.unhcrwashington.org/media-news/latest-news/juliana-deguis-pierre-receives-dominican-national-id-after-long-battle-regain

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