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MEMO: Constitutional Changes in the Dominican Republic

(2010-02-05)

1. Introduction

On January 26, the Dominican Republic promulgated a new constitution that could leave large numbers of Dominicans of Haitian descent stateless. The changes to nationality provisions, first approved in October 2009 by the country’s legislators, will redefine Dominican citizenship and deny children born on Dominican soil to immigrant parents “residing illegally” in the country their legal claim to Dominican nationality. The new regime institutionalizes what was already widespread and discriminatory denial of citizenship, and related rights, of persons of Haitian descent on the basis of perceived or actual ancestry of the individual.  This memo outlines events leading up to the recently approved nationality regime, its details and human rights implications.

2. Historical Antecedents

Initially brought to work on Dominican sugar cane plantations as part of guest-worker agreements between the Dominican and Haitian governments, and more recently by the promise of jobs in a growing construction industry, Haitians and Dominicans of Haitian descent now number about one million.  Dominicans of Haitian descent and Haitian immigrants in the Dominican Republic have suffered both violence and institutional discrimination.  The most extreme case often cited is the 1937 massacre of twenty to thirty thousand Haitians living in the Dominican Republic, ordered by then President Rafael Trujillo who espoused a sharp “anti-haitianism.”  While this is the most extreme case, historically, persons of Haitian descent continue to suffer from trafficking, exploitation, violence, including murder, and institutional discrimination.  Today, the global economic crisis has heightened social tensions against an already vulnerable population.

3. Recent Developments

Since the 1980’s, persons of Haitian descent in the Dominican Republic have often been denied birthright citizenship, whereby a person born on national territory is granted citizenship of the governing nation, regardless of national origin, skin color or the social status of parents; this, despite the Dominican Constitution’s inclusion of birthright citizenship.  Since 2004, the Dominican government has steadily institutionalized efforts that undercut the Constitutional guarantee of birthright citizenship and simultaneously reformed its civil registry to the detriment of persons of Haitian descent.  The U.S. position on these issues has been ambiguous at best, as both USAID and State officials have publicly supported civil registry policies in the context of so called anti-fraud reforms, and may in fact be providing technical assistance to advance the process.

A 2004 Migration Law made two significant changes that have been used to undermine birthright citizenship, and in effect, exclude children of Haitian-Dominicans from citizenship.  First, it broadened the constitutional definition of the “in transit” exception to birthright nationality.  Under the 2004 definition, children born on Dominican soil of non-citizen parents are deemed “in transit” and do not gain citizenship, regardless of the length of time their parents have lived in the country.  Coupled with administrative directives which provide civil registry officials broad discretion and little oversight to deny and void documents which appear “irregular,” the law permits the arbitrary denial of documents and copies of documents to re-classify such individuals as persons in transit, and thus, “illegal.”

Second, the 2004 Migration Law created a Book of Foreigners to register the children of undocumented residing mothers.  Using the new definition of “in transit” and separate registration processes for the children of undocumented mothers, the 2004 Migration Law has been applied retroactively to deny identity documents to Dominicans of Haitian ancestry, literally denationalizing individuals in this minority group and leaving them stateless.

4. Impact of Not Having Identity Documents

The routine and arbitrary denial of identity documents from persons of Haitian descent, including Dominicans of Haitian descent, leaves individuals without the proof of nationality required for the most basic of public services.  Without identity documents, persons of Haitian descent are denied access to school, decent housing, healthcare, property and freedom of movement.  Moreover, they are refused avenues to seek redress for instances of abuse, exploitation, discrimination and violence.

5. New Nationality Regime

On September 28, 2009 the Dominican Congress ratified Article 18 of the Dominican Constitution, which revised the conditions for acquiring Dominican nationality.  The new nationality regime will grant citizenship by both bloodline and birthright; however, it precludes from citizenship the children of foreigners who “illegally reside” in the Dominican territory.  The new constitution is more specific in its treatment of foreigners than the previous constitution, which stated that the exception to nationality by birthright applied only to those who were “in transit” in the country, a common exception meant for diplomats and persons on business.  The new Constitution that incoporated broader reforms was promulgated on January 26, 2010.

6. Violations of International Law

The inclusion of the new provision affecting the children of undocumented persons changes the Dominican Constitution to reflect an interpretation of the 2004 Dominican Migration Law that the Inter-American Court on Human Rights deemed in violation of both international law and the Dominican Constitution.  The Inter-American Court’s jurisprudence establishes that “the migratory status of a person cannot be a condition for the State to grant nationality, because migratory status can never constitute a justification for depriving a person of the right to nationality or the enjoyment and exercise of his rights,” and most notably, that “the migratory status of a person is not transmitted to the children.”  Thus, the new nationality regime violates international law in two fundamental respects: i) it makes one’s migratory status, in this case one’s lack of documents, a basis for denying Dominican nationality; and ii) it creates a legal regime through which the migratory status of one’s parents is transferred to their children.

The new language permits a retroactive application to all those persons that are deemed to fall into this new category, another violation of a fundamental principle of international law.  The fact that no implementing legislation for the Migration Law of 2004 has been enacted in the past four years has created a legal vacuum that increases the risk of the retroactive application of the new regime.

7. Recommendations

The U.S. government should implement more rigorous oversight of U.S. aid programs to ensure compliance with a policy of non-discrimination. Specifically, the U.S. should:

  1. Make U.S. appropriations to the Dominican Republic conditional upon strict adherence to non-discriminatory practices toward Dominicans of Haitian descent and Haitian immigrants and requiring an analysis of potential discriminatory impact.
  2. Publicly withdraw support for the “book of foreigners” and “pink declaration,” condemning their discriminatory and retroactive implementation, and publicly condemn the retroactive use of the 2004 Migration Law that continues to render thousands of Dominicans stateless.
  3. Support Dominican government efforts to protect persons of Haitian descent in the Dominican Republic, including the re-establishment of the Dominican-Haitian Bilateral Commission to determine methods of investigating and documenting incidences of hate crimes.
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