Stateless in the Dominican Republic. Explaining, Assessing and Evaluating Ongoing Violations of Human Rights

Inhaltsverzeichnis

Introduction

Historical Development

Assessing the Current Situation

International Obligations

Concluding: Recommended Actions

Bibliography

“(Nationality) is one of the most important rights of man, after the right to life itself, because all other prerogative guarantees and benefits man derives from his membership in a political and social community – the states – stem from or are supported by this right.”¹

Introduction

Nationality is the “right to have rights”² protected by Art.15 of the Universal Declaration of Human Rights³. Nevertheless do various scenarios exist which could leave individuals without a nationality – thus stateless. Article 1 of the 1954 Convention Relating to the Status of Stateless Persons defines those as someone “who is not considered as a national by any state under the operation of its law”⁴.

But being without a nationality is not only being violated in one’s most fundamental rights but furthermore comes with an increased vulnerability to violations of various other personal rights such as discrimination and unequal treatment by governments resulting from a lack of protection of the individual.⁵

Human rights have been created after the horrors of World War II to prevent regimes from abusing national legislation and to protect citizens in their basic rights directly under international law.⁶ But although human rights are theoretically not dependent on a certain nationality but generally based on being human (and although this “denationalisation” of protection might have historically affected the significance of nationality⁷ ) certain rights remain de facto only executable in relation to a country of citizenship. Especially the right to legal personhood or access to courts, although actually granted by the Statelessness Convention⁸ and vital to enforce one’s rights in general, are examples of rights which are especially vulnerable and often de facto restricted to citizens⁹.

While the 1954 Statelessness Convention aims to protect the rights of those exceptionally vulnerable people, especially in countries which have not signed the 1954 Convention, as it is the case with the Dominican Republic, statelessness remains directly linked to various human rights violations, questioning the actual universality of the Universal Human Rights.

Historical Development

In order to fully understand the nature of the statelessness issue of the Dominican Republic it is necessary to turn back to the year of 2004 in which the country started to gradually change its citizenship laws.

In the 1940s the need for cheap labour called many Haitians to the Dominican Republic where the immigrants enjoyed the benefits of a constitutional right to Dominican citizenship to everyone born inside the country irrespectively of the migration status of the parents.¹⁰ Originally this jus soli citizenship knew only two exceptions: Diplomats and children born to parents “in transit” – a term legally defined as “being within the country for ten days or less”.¹¹

But in 2004 the new Migration Law 285/04 de facto revoked the promise of birthright citizenship for Dominicans of Haitian descent by broaden the definition of “in transit” to henceforward also include nonresidents – including all migrant workers who had been working and living in the country for years, leaving them unable to register their Dominican-born children as Dominican citizens henceforth.

In 2007 an administrative order called Circular 017 was issued, prohibiting registry officers to give anyone with “suspect” documents a copy of their birth certificate – generally those provisions seemed to be applied in such a way that it prevailingly affects individuals who are perceived as being Haitian.¹² Since a birth certificate is necessary in order to obtain a cédula – the national identification card – many Dominicans of Haitian descent are since then unable to apply for such a card upon reaching the age of 18. Besides bearing the risk of being fined or even imprisoned for being caught without a cédula which is prescribed by law, residents without such a document find themselves excluded from numerous legal activities such as voting, marrying, the opening of a bank account or the possibility to apply for a passport. Without a cédula one is furthermore unable to enroll in certain universities, obtain legal employment or have one’s children registered – a fact which illustrates the hereditary nature of the problem. Justified as a mean to correct the improper issuing of birth certificates in the past, the issue of Circular 017 is legally questionable. It infringes the right to unobstructed access to your personal documents as protected under Dominican law¹³ and furthermore ignores national legal provisions which claim previously issued birth certificates valid until their validity should be officially revoked by a judicial authority. Since the citizenship requirement of needed parental residency had not been introduced before 2004, Circular 017 is on top of all a clearly retroactive application of the Migration law 285-04.¹⁴

In 2010 the new Constitution of the Dominican Republic was issued codifying the denial of citizenship to those children born to non-residents constitutionally. Article 18 of the new Constitution now defines Dominicans as “The children born of Dominican mothers and fathers” and “persons born in national territory (…) with the exception of sons and daughters of (…) foreigners who find themselves in transit or reside illegally in the Dominican territory”¹⁵ and thus makes the right to a Dominican nationality completely dependent on the parents’ migration status. The new constitution effectively eliminated the birthright citizenship to children of non-Dominican parents and since earlier policies, such as Circular 017, make it hardly possible for individuals of Haitian descendent to access their birth certificates which is needed in order to acquire the national identity card, the new definition of Dominicans de facto deprives not only them but also their children of the possibility to acquire Dominican citizenship.

After a judgment¹⁶ of the Dominican Constitutional Court which had effectively stripped thousands of Dominicans of foreign descent of their Dominican citizenship in 2013 was heavily criticized by the international community, the authorities of the Dominican Republic answered this condemnation in May 2014 with Law 169/14 ¹⁷ creating two groups of people: Those who had been registered with the civil registry at some point (group A) and those whose birth had never been declared in the Dominican Republic (group B). While the law allowed those of group A to easily access their nationality after a procedural regularization process, individuals of group B would be required to first register as a foreigner and than apply for a regular and often lengthy naturalization procedure after two years. Amnesty reports that due to poor implementation of the newly installed procedures many of those in group A, who theoretically should quickly have their nationality fully restored, are still waiting for their documents and thus remain de facto stateless at the moment. But while this might be a state of momentarily statelessness only, many individuals who found themselves in group B but who failed to register before the deadline which was set for the 1st of February 2015, are left ultimately deprived of their chance to acquire Dominican citizenship. According to the Dominican Minister of the Interior less than 5%¹⁸ of those eligible to register under the procedures for group B actually did so – a shockingly low amount which Amnesty explains with a failure by the government to provide information and properly organize the application process. ¹⁹

While human rights attorney Cristobal Rodríguez describes the events as “civil genocide”²⁰, the Dominican authorities repeatedly repel the accusation of creating a statelessness problem. A judgment by the Inter-American Court in 2014 found both the above mentioned ruling of the Constitutional Court and parts of the law 196-14 as violations of the American Human Rights Convention. But the Dominican authorities did not only reject this judgment of the IACHR but furthermore issued a ruling proclaiming that the manner through which the Dominican Republic had joined the IACHR in 1999 had not been constitutional in the first place; thus rejecting the Court’s jurisdiction all together.²¹

Assessing the Current Situation

Various publications of human rights organizations such as Amnesty report on ongoing infringements of fundamental rights in the Dominican Republic. Without a birth certificate people are unable to work or access vital services.²² As already stated are those people excluded from various legal activities and the possibility to register their children at birth.²³

But concerns go beyond arbitrary discrimination by the Dominican government: in February 2015 the Guardian reported on a lynching of a young man in Santiago.²⁴ Although the exact reasons of the brutal murder are not fully known and the local police quickly related the death to a theft disregarding xenophobia as a motive, Santiago Canton of Robert F. Kennedy Human Rights is sure that it “comes in the context of constant discrimination and violence against Haitians”. Only hours before, a group of Dominicans had publicly burned the Haitian flag in the streets of Santiago and recently another human rights group reported of a man who was denied access to the public bus since he “looked Haitian”. Since the court ruling in 2013 retroactively denied citizenship to tens of thousands of Dominican-born people of Haitian descendant, an “Anti-Haitian sentiment” is steadily on the rise.

Failing to register in time for the new naturalization process under the Law 169/14, many thousands are left stateless in the country of their birth and at constant risk of expulsion: On January 27, 2015 a group of 51 people including 30 Dominican-born minors on their way to register for residency, were summarily deported without due process and only released after the intervention of a human rights group.²⁵

Although the Dominican government repeatedly denies the existence of statelessness, Erika Guevara Rosas, American director of Amnesty International, states “When the vast majority of these people were born, the Dominican law at the time recognized them as citizens,” she said. “Stripping them of this right, and then creating impossible administrative hurdles to stay in the country is a violation of their human rights”.²⁶

[...]

¹ (Inter-American Commission on Human Rights, 1977)

² (TROP v. DULLES, Secretary of State, et al., 1958)

³ (UN General Assembly, 1948, Art.15)

⁴ (UN General Assembly, 1954, Art.1)

⁵ (Institute on Statelessness and Inclusion, 2015)

⁶ (Elles, 1980)

⁷ (Seperate Opinion of Judge A.A. Cancado Trinidad, Case of Yean and Bosico v. Dominican Repbulic, 2005)

⁸ (UN General Assembly, 1954, Art.16) (Jordan, 2013)

⁹ (van Waas, 2008)

¹⁰ (Cardenas, 2012)

¹¹ (Jordan and Sternberg, 2013)

¹² (Open Society Institute, 2011, p.13)

¹³ (Open Society Institute, 2011, p.11)

¹⁴ (Open Society Institute, 2011, p.9)

¹⁵ (Dominican Republic, 2010, art.18)

¹⁶ (Dominican Republic: Constitutional Court, Sentencia TC/0168/13)

¹⁷ (Amnesty International Annual Report, 2015)

¹⁸ (Amnesty International, 2015)

¹⁹ (Amnesty International, 2015)

²⁰ (Walter Cronkite School of Journalism and Mass Communication, 2011)

²¹ (Open Society Justice Initiative, 2014)

²² (Amnesty International, 2015)

²³ (Walter Cronkite School of Journalism and Mass Communication, 2011)

²⁴ (Brodzinsky, 2015)

²⁵ (Amnesty International, 2015)

²⁶ (Brodzinsky, 2015)