A main point of contention in the Dominican nationality debate is whether children of Haitian descent who are denied Dominican nationality are left stateless. The second section will illustrate how the transnational legal debate on the right to nationality and statelessness in the Dominican Republic led the Inter-American Court of Human Rights to create a new rule of protection for persons at "risk of statelessness" in face to face It will begin by describing the history and evolution of the Dominican nationality debate.
THE HUMAN RIGHT TO NATIONALITY AND STATELESSNESS
It will then describe how the nationality debate in the Dominican Republic led to a series of legal rulings by the Inter-American Court, the Dominican Supreme Court of Justice and the Dominican Constitutional Court that interpreted and applied the international law of statelessness in the Dominican context. Finally, this section will present a detailed account of the Inter-American Court's statelessness analysis in Expelled Dominicans and Haitians and will explain how its decision created a rule requiring a grant of nationality in the country of birth for a child who at risk of becoming stateless.
The Evolution of Nationality as an Individual Right
Nevertheless, in the early part of the twentieth century it became clear to the international community that international law's regulation of nationality acquisition would facilitate amicable interaction between states. In particular, the Human Rights Committee has stated that "the rights in the convention apply to everyone.
International Protection for Stateless Persons
THE EMERGENCE OF THE "RISK OF STATELESSNESS" DOCTRINE IN
One of the most pressing situations of statelessness in the world today is that which has occurred in the Dominican Republic, where the UNHCR has reported a population of over 130,000 stateless people.2 This nationality rights crisis in that country has arisen against the backdrop of historical marginalization and mistreatment of Haitian migrants and their. This section first outlines the legal framework within which the nationality debate has unfolded in the Dominican Republic and highlights the abuses that have led to the situation of statelessness. Subsequently, this section will follow a debate between the Inter-American Court of Human Rights and the Supreme Courts of the Dominican Republic on the appropriate role of the law of statelessness in addressing the situation of persons denied Dominican nationality .
Dominican Republic, in which the Court took a new normative step to protect those facing a "risk of statelessness" in the Dominican Republic. Specifically, the Court extended the well-established rule described in the previous section that a state must guarantee its nationality to a child born stateless in its territory. The Court held that the Dominican Republic had an obligation to determine whether children born in its territory were stateless, and in finding that it had failed to do so, required it to guarantee Dominican nationality to persons who faced a risk of statelessness.
Nationality Rights and Statelessness in Hispaniola
In 1929, a new formulation was included in the constitution that would guarantee the rule of citizenship by birth in the Dominican Republic for more than 80 years.'os This provision declared that Dominican citizenship would be granted to anyone born within the country's territory, with the exception of those people born to foreigners in the diplomatic service or "in transit."104 Surprisingly, no clear definition of "in transit" was given at the time, and no legislation directly addressed this constitutional language for 75 years.1 05. This is surprising in part because Haitian migration to the Dominican Republic flowed almost unencumbered through a clearly demarcated, albeit porous, border throughout the twentieth century.106 This migration took place to provide labor in the agricultural, construction, and household service sectors and led to significant contributions by Haitians to socio-cultural life. in the Dominican Republic.0 7 Hundreds of thousands of Haitian migrants adopted the Dominican Republic as their home'0 8 and their children were considered Dominicans under the prevailing interpretation of the Dominican Constitution.1 0 9. Comunicaci6n 4411 del Secretario de Estado de las Fuerzas Armadas , Mayor General Juan Rene Beauchamp Javier al Presidente de la Repiiblica, Joaquin Balaguer [Message 4411 of the Secretary of State for the Armed Forces, Major General Juan Rene Beauchamp Javier, to the President of the Republic Joaquin Balaguer] (Mar, hereinafter referred to as Message 4411] (Dom. Rep.); see also Inter-Am. H.R., Report on the Situation of Human Rights in the Dominican Republic, ¶ 113, OEA/Ser.L/V/II, Doc. https://perma.cc/96MB-KJJ4] [hereinafter the 2015 IACHR Report on the Dominican Republic]. discussion of message content 4411).
The international human rights community became increasingly engaged in the plight of Haitian migrants and their children throughout this period.119 The most concrete intervention to address discriminatory practices related to nationality came with The Girls Yean and Bosico v. Inter-American Court laid out a framework of international law that limited the discretion of the Dominican Republic in matters of nationality: "on the one hand, by their obligation to ensure to individuals the equal and effective protection of the law and, on the other hand , from their obligation to prevent, avoid and reduce statelessness."127 The Court found that the Dominican authorities had arbitrarily applied excessively strict documentary requirements to the girls' late registration requests and refused to register their births when they did not meet these requirements. request.128 The court took into account the actions of the registry of civil status in. In finding that the girls were stateless, the Court did not specifically analyze or address Haitian law regarding nationality; rather, it focused on the wrongful actions of the Dominican authorities in denying them Dominican citizenship.131 This determination by the Inter-American Court that these girls born in the Dominican Republic to Haitian parents became stateless when they were denied citizenship Dominican. out of a debate about statelessness that continues today.
A Clash Over the Meaning of Statelessness
This exchange between the Inter-American Court and the SCJ raised the issue of statelessness in the debate on nationality in the Dominican Republic. Both national and international actors took this cue and began refining their positions on the statelessness of persons born in the Dominican Republic of Haitian parents. Baluarte, Inter-American Justice Comes to the Dominican Republic: An Island Shakes as Human Rights and Sovereignty Clash, 13 HuM.
See SAIS Int'l Human Rights Clinic, Justice Derailed: The Uncertain Fate of Haitian Migrants and Dominicans of Haitian Descent in the Dominican Republic, JOHNS HOPKINS UNIV. This denationalization campaign began perhaps the most disturbing chapter in the recent history of the Dominican State's treatment of this national ethnic minority. The Constitutional Court recognized that the 1961 Convention, the CRC and the ICCPR both required the Dominican Republic to guarantee nationality to a child born on its territory who would otherwise remain stateless.160 However, the Constitutional Court ruled that this protection was not activated in the case of Ms.
Expelled Dominicans and Haitians vs. Dominican Republic
CONSIDERING RISK WITHIN THE STATELESSNESS DETERMINATION
When the Inter-American Court extended the protection of statelessness under international law to persons facing a risk of statelessness, it extended the scope of a well-established rule limited to the protection of stateless persons.220 Gerald L. It is without a doubt, the American Court's decision distorts the norms for the protection of statelessness and potentially undermines the effectiveness of the inter-American system in its efforts to combat statelessness. These harmful consequences can be avoided by the Inter-American Court and other international authorities if they remain rooted in the well-established rule of protection of stateless persons, while incorporating a risk assessment in the determination of statelessness.
Neuman, Import, Export and Regional Consent in the Inter-American Court of Human Rights, 19 EUR. He argues that the Inter-American Court's "risk of statelessness" is analogous to de facto statelessness, which is an unprotected status under international statelessness law. Acknowledging that concerns about the risk of statelessness are valid, this section demonstrates how the legal and factual challenges raised by the Inter-American Court on Haitian and Dominican Displaced Persons can be addressed in a statelessness determination process.
Avoiding the De Facto Statelessness Dilemma
A protracted debate in the current campaign to eradicate statelessness has recently concluded with a broad acceptance that statelessness is de jure, rather than de facto, the proper trigger for protection under the law of statelessness. The similarity between de facto statelessness and the Inter-American Court's "risk of statelessness" doctrine forces further investigation, with important implications for statelessness protection. The historical context in which the 1954 Convention was finally promulgated is an important starting point for this presentation of the de facto statelessness dilemma.
Yet there was some acknowledgment of the difficulty in distinguishing between de jure and de facto statelessness. Meanwhile, the other two de facto statelessness scenarios where citizenship is contested or cannot be established reflect the "risk of statelessness" that prompted statelessness protections in the Inter-American Court ruling. When the Inter-American Court extended protection against statelessness to persons who were demonstrably de facto stateless, it extended the protection of that legal system beyond its well-defined limits.
Returning to the Statelessness Determination
See generally CONSTITUTION DE 1918 DE LA REPUBLIQUE D'HAITI AMENDPE PAR LE PlUBISCITE DES 10 ET 11 JANUARY AMENDMENTS TO THE 1918 CONSTITUTION OF THE REPUBLIC OF HAITI], 2 Jan. a Haitian mother; [and] 3) [a] person born in Haiti to a foreign father or, if the father does not recognize the child, to a foreign mother, as long as he is of the black race, is Haitian." translation on file with author) (emphasis added). 17 (stating that Haitian nationality is incompatible with all other nationalities and no one may have a dual nationality where one of the nationalities is Haitian); see also 1983 CONSTITUTION OF THE REPUBLIC OF HAITI, August
Regardless, proving eligibility under the relevant legal framework is likely to require both legal proof and proof of the parents' citizenship. Difficulties implementing a 2014 initiative by the Haitian government that sought to resolve document requirements for some irregular-status migrants living in the Dominican Republic further highlighted the "continued disorganization of Haiti's civil registration system." Tobin, supra note 264, at 6, the fundamental nature of the right to citizenship and the need to resolve such matters may require a finding of statelessness, whether or not the statelessness inquiry provides a clear answer.
A Role for the Risk of Statelessness
The most fundamental statement of the human right to citizenship is that everyone should have it. The Bahamas has not ratified the jurisdiction of the Inter-American Court, nor has it ratified the American Convention on Human Rights. These cases highlight the potential for backlash in response to the doctrinal expansion in the recent Inter-American Court decision in Expelled Haitians and Dominicans.
This article encourages a more cautious approach than that taken by the Inter-American Court, but should not be read to undermine the importance of the risk assessment suggested by the Court. This standard is derived from the fundamental nature of the right to citizenship and from the fact that a person either has citizenship or is stateless, and there is no in-between status. 34; stateless person" under international law if it is more likely than not that she would not be considered a citizen under the operation of the laws of any country.
