Emerging Voices: New Citizenship Law Will Not End Race-based Statelessness in the Dominican Republic

by Jillian Blake

[Jillian Blake is an immigration attorney at a non-profit organization in Alexandria, Virginia. She is a graduate of the University of Michigan Law School and the Johns Hopkins School of Advanced International Studies (SAIS).]

In May, Dominican President Danilo Medina signed a new naturalization law aimed at restoring the rights of some who were stripped of their citizenship in a September 2013 Supreme Court ruling. The ruling held that those born in the Dominican Republic to undocumented immigrants, who are predominantly black and of Haitian origin, are not Dominican citizens and instructed the government to apply the ruling retroactively, going back to 1929. International human rights groups strongly condemned the decision as racist and xenophobic and argued it would render hundreds of thousands of people stateless. The Caribbean Community (CARICOM), an international organization made up of 15 Caribbean states, also denounced the ruling and suspended the Dominican Republic’s application for membership.

The new citizenship law, Law 169-14, was passed this spring in response to the international backlash against the Supreme Court decision. Law 169-14 establishes a regime to restore the citizenship rights of those born between 1929 and 2007 who are entered in the civil registry. Notably, the law excludes restoration of citizenship to those born between 2007 and 2010, the year the new Dominican Constitution first revoked jus soli citizenship, or citizenship based on where one is born. All those born after 2007, or who are not in the civil registry, are required to register as foreigners and will then have to apply for regularization and naturalization.

While the law could restore citizenship rights to thousands of people, it is far from a final victory against statelessness in the Dominican Republic. First, the law only addresses a small percentage of those impacted by the Supreme Court ruling. According to human rights groups roughly 24,000 of the more than 200,000 people rendered stateless could qualify to have their citizenship restored under the law, and even that restoration is not automatic. Part of the reason so few will be affected is that for many years hospitals and government agencies refused to issue birth certificates or other identity documents to children of parents of Haitian origin. Many children born in the Dominican Republic do not have birth certificates and/or are not listed in the civil registry. Any long-lasting solution will require hospitals to issue birth certificates for, and enter into the civil registry, all persons born in the Dominican Republic and recognize their citizenship. There also should be a national drive to document (as citizens) those born in the Dominican Republic who do not currently possess birth certificates.

Second, the new law is still premised on the illegal assumption that those born in Dominican territory are not citizens. This retrogression of established inter-American law, which recognizes jus soli citizenship, is not only illegitimate but could lead to the denial of rights elsewhere in the future. Third, given the racially-biased administration of past immigration and naturalization regulations in the Dominican Republic, there is a serious concern that even those entitled to the restoration of citizenship under the law will never actually be recognized as citizens. Fourth, the law requires those who are not in the civil registry to register with the government within 90 days after the law takes affect, which will exclude many who can’t register in time, especially the poor and those living in remote areas. Finally, the law will not restore citizenship to future generations born in the Dominican Republic, which will leave a perpetual system of statelessness in the country.

In an Article forthcoming in the Georgetown Journal of Law and Modern Critical Race Perspectives entitled, “Haiti, the Dominican Republic, and Race-based Statelessness in the Americas” I analyze the 2013 Supreme Court decision and long history of citizenship exclusion based on racial and ethnic prejudice in the Dominican Republic. I argue that the Dominican Republic’s immigration and naturalization laws create a system of “race-based statelessness” which is clearly prohibited under inter-American and international law. Jus soli citizenship is regional customary law in the Americas, and attempts to restrict this manner of acquiring citizenship have historically been tied to racial and ethnic discrimination.

In the Article I also propose steps the international community should take to fight against statelessness in the Americas. States should be open to granting refugee status to those fleeing racial persecution in the Dominican Republic. The fundamental elements that define “refugee” under the 1951 Refugee Convention are a well-founded fear of persecution, based on an enumerated ground (race, religion, nationality, political opinion, membership in a particular social group), and lack of state protection. The revocation of citizenship denies the most basic human rights to people in the Dominican Republic, and makes them vulnerable to exploitation and violence, which amounts to systematic persecution. Furthermore, that persecution is based on a protected ground—race. Finally, because the government sanctions and maintains the system of race-based statelessness, the state will not protect people from racial persecution. Still, granting refugee status should not be a primary solution to the problem because many of the people affected by race-based statelessness consider the Dominican Republic their home and don’t want to leave.

The Dominican Republic has thus far disregarded the binding decisions of international courts, including the landmark Inter-American Court of Human Rights decision in Yean and Bosico. In the case the Court found that the Dominican Republic’s denial of two girls’ birth certificates violated their right to nationality and other human rights. Because the Dominican Republic has shown it will not comply with the ruling of the Court, pressure should now be put on the country through other means including the regional trade agreement, the United States-Dominican Republic Central America Free Trade Agreement (CAFTA-DR). The system of race-based statelessness leads to violations of labor laws by enabling the exploitation of undocumented workers in the sugar industry, and therefore violates the Dominican Republic’s legal obligations under Article 16 of CAFTA-DR, which requires the country to enforce its labor laws. According to a September 2013 report by the U.S. Department of Labor, there are widespread labor violations in the Dominican sugar industry including violations of minimum wage and child labor laws. Child labor laws cannot be enforced without proper birth certificates verifying workers’ age. Furthermore, lack of documentation subjects workers to exploitation in violation of CAFTA-DR labor standards. CAFTA-DR can be a point of pressure to fight race-based statelessness in the Dominican Republic.

Finally, civil society groups should continue their important work on the issue and advocate for international action and the restoration of citizenship rights in the Dominican Republic. The Open Society Justice Initiative is one group that has been very active on the issue for many years, and has established a program on anti-discrimination in the Dominican Republic. The Initiative has also produced insightful analysis of the new Dominican citizenship law, which can be found here and here.

There is danger that the new naturalization law will dull international outrage and lead to a sense of complacency because some legislative action was taken. Despite the law, Dominicans, civil society groups, and governments worldwide should continue to put pressure on the Dominican government to take further action. The 2013 Supreme Court decision was nOt the result of a sudden shift in law or policy, but rather part of a gradual erosion of rights that took place over the course of decades and generations. The damage of race-based statelessness will therefore not be quick or easy to repair, but international attention must be kept on the issue until all Dominicans have their citizenship rights restored.

http://opiniojuris.org/2014/08/06/emerging-voices-new-citizenship-law-will-end-race-based-statelessness-dominican-republic/

6 Responses

  1. I find this statement a bit perplexing: “Jus soli citizenship is regional customary law in the Americas, and attempts to restrict this manner of acquiring citizenship have historically been tied to racial and ethnic discrimination.”

    I can see why looking to history can be a tempting argument, but this statement seems a little far-fetched and unsubstantiated. It amounts to saying that no country in the Americas can choose ius sanguinis because it is *assumed* such a choice is discriminatory. What kind of custom are we talking about here? What kind of international law forbids countries from choosing their citizenship regime? As far as I can tell, there is absolutely no legal rationale (this post certainly hasn’t provided it) for making such a claim. Germany adheres to jus sanguinis, as do many other countries around the world, but no one has ever argued that this is part of European ‘customary law.’ It’s simply a policy choice, or am I missing something here?

    Please don’t get me wrong: this is not to say that the Dominican’s Republic actions are legally justified. As you aptly point out, there are many reasons to believe that the government’s choices are unlawful. The discrimination point seems very apposite, but it would require elaboration. Just saying that something is custom, or that a choice of policy is presumed discriminatory, doesn’t make it so.

  2. Maya, first thanks for reading and commenting. Because of the limited space in a blog entry I wasn’t able to elaborate on all the arguments I made including the point about jus soli being regional customary international law. Of course, there is often disagreement about what constitutes customary international law because it can be hard to determine if state practice is followed out of a sense of legal obligation. I believe, however, it is customary international law for the following reasons. First, the argument for jus soli CIL is strong looking at state practice. As I elaborate on in the longer article, only 30 countries in the world grant automatic jus soli citizenship and all of them are in the Americas. There is a widespread, if not universal, practice of granting jus soli citizenship that is indicative of CIL at a regional level. I do not believe this is a coincidence but the policy has been pursued deliberately out of a sense of legal obligation based on the history of the Americas as a land of immigrants/protection of minority rights/legacy of slavery. Also, I believe the outcry from many states in the Americas about the Dominican policy reflects a regional consensus that denial of jus soli citizenship is unjust. Also, inter-American courts have condemned the policy of the Dominican Republic, further supporting the case for regional CIL against denial of jus soli citizenship. There are also movements in the U.S. to deny jus soli citizenship and I do believe that the practice is not just followed as good policy but out of a sense of legal obligation that comes with being a state in the Americas.

  3. Yeah, I must admit extremely skepticism at any assertion of a international norm of jus soli citizenship. If anything, there’s one of jus sanguinis. Selecting the local “neighborhood” seems completely arbitrary.

    If we’re going to start saying regional practice is the key to CIL, I think the US should assert some kind of custom of unilateral intervention based on practice on this side of the pond… heck, the Roosevelt Corollary was a good century ago…

  4. I wonder what does the author of this article would say if i ask why Haiti does not matter on the issue of JUS SOLI, does the author knows that Haiti, the source of most the people getting illegally to DR, DOES NOT grant CITIZENSHIP by Jus SOLI???

    SO, if we are to be FAIR i want to see an article portraying Haiti exactly the same way is done with the DR HERE.

  5. M. Gross- I’m certainly not claiming the policy of a single country would be enough to constitute regional CIL. But 30 is different story.

    victor-I do know that, and it is stated in the longer paper. The major differences are that their policy isn’t leaving hundreds of thousands of people stateless. furthermore, there is little to evidence that their policy is based on racial prejudice. finally, the dominican republic has had a standard of jus soli in their constitution since 1929 and is revoking it retroactively which is another distinction. so i believe i am only being fair in making a clear distinction between the two cases because of these reasons which i did bring this up in the paper.

  6. Jilian, thanks so much for clarifying that: “…I do believe that the practice is not just followed as good policy but out of a sense of legal obligation that comes with being a state in the Americas.”

    I have to say I continue to be deeply perplexed by your claim, but since I am not an expert in customary international law I would be curious to hear more about this. For me this is a matter of policy that has nothing to do with law, and I fail to see any coherent argument for why this could be framed as a legal issue — but my opinion is less relevant here than the meta-argument that you’re making, which is some kind of international ‘custom’ which crystallises at the regional level and thus has only regional scope but – at the same time – constitutes, according to you, customary *international* law. It’s a creative argument but I’d be curious to hear whether an international tribunal has ever recognised international ‘custom’ in the regional sense that you’re propounding (setting aside the specific legal issue we’re dealing with here, and focusing on the meta-argument). What is this idea of a customary *international* norm that in fact reflects a small minority of the world’s states? Has such an argument ever been upheld?

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