It was seen over the last few weeks that birthright citizenship in the United States has come under attack under the Trump administration. Although the President claimed that the US was the only country in the world granting citizenship automatically by birth on the territory, comparative research clearly demonstrates that ius soli is in fact the norm in the Americas.
Jonathan Katz has recently shown in The Atlantic how opponents of birthright citizenship have taken part of their inspiration from the Dominican Republic (DR) – the country where almost the entire stateless population in the Americas live. The stateless Dominicans of Haitian descent are consistently mentioned in lists of global pockets of statelessness, very much like the Rohingya in Southeast Asia.
In the Dominican Republic, persons born in the country to non-citizen parents acquire Dominican nationality automatically by ius soli, but not if their parents are illegal residents or ‘in transit’. The use of the ‘in transit’ category for discriminatory purposes has become notorious in relation to the children born in the DR to Haitian parents, and the systematic denial of birth registration and documentation to children born to Haitian migrant workers who in many cases have lived in the DR for a long time has attracted a lot of international attention.
The animosity between the Dominican Republic and Haiti has a long history. Following the successful battle for independence from France, Haiti invaded the Dominican Republic in 1822 in order to end slavery there. It would rule the eastern part of the island for the next twenty-two years. The period under Haitian occupation still lives on in the Dominican popular imagination and affects feelings towards current Haitian migrants in the country. Migration from Haiti started in the early 1900s, when cheap labour migrants were recruited to work in the sugar industry. However, the Dominican contempt for Haitians remained and culminated in the 1937 massacre of thousands of Haitians living in the border provinces. This massacre was committed under the dictatorship of Rafael Leonidas Trujillo (1930-1961), whose regime ‘fostered a national identity and institutional racism that favoured whites over blacks’.
The lack of a Dominican birth certificate for individuals of Haitian descent means that they cannot obtain a national identity card, which is necessary to enjoy political, economic, and civil rights under Dominican law. Importantly, unregistered children cannot prove where they were born nor to whom, and therefore they are denied Dominican citizenship. This denial of citizenship is estimated to have resulted in hundreds of thousands of stateless people who were born in the DR and have no ties to Haiti – their parents’ country of origin.
On 8 September 2005 the Inter-American Court of Human Rights found that this Dominican practice violated a number of Articles from the American Convention on Human Rights (including Article 20 dealing with nationality) in the case of Dilcia Yean and Violeta Bosico v. Dominican Republic. This decision was subsequently met with a great deal of hostility by the DR. In October 2005 the Senate issued a resolution rejecting the judgment; and on 14 December of that year the Constitutional Court indirectly responded to the Inter-American Court’s ruling by confirming the constitutionality of the 2004 General Law on Migration, which had brought all ‘non-residents’ (also covering undocumented Haitian migrant workers) within the ‘in transit’ category. Children born to parents who were in transit in the DR were excluded from ius soli acquisition at birth.
The DR confirmed the practice under the 2004 General Law on Migration at the constitutional level in 2010, by providing in Article 18 of the Constitution that Dominican citizenship is enjoyed by ‘persons born on national territory, with the exception of the sons and daughters of foreign members of diplomatic and consular delegations, and foreigners who find themselves in transit or reside illegally on Dominican territory’. ‘Illegal residence’ and ‘in transit’ may be regarded as synonyms, since persons who do not meet the requirements for legal residence are considered to be in transit regardless of the amount of time spent in the DR.
In fact, the General Law on Migration not only denies ius soli citizenship to children born to undocumented parents but also applies retroactively to Dominicans of Haitian descent who once enjoyed the full rights pertinent to Dominican citizenship. The policy effectively means that Dominicans of Haitian descent who were born in the DR at a time when they still automatically acquired Dominican nationality iure soli were retroactively rendered stateless through the revocation of their citizenship. A Constitutional Court judgment of 23 September 2013, in which it was ruled that the definition of ‘in transit’ retroactively applies to all persons born in the DR after 1929, made UNHCR ‘deeply concerned’.
The case of the stateless Dominicans is also a clear example of the scale of the problem of in situ statelessness – that is, statelessness of longstanding residents who may never even have crossed any international borders and are therefore stateless in the only country they have ever known. Kristy Belton has noted in respect of this group that ‘despite the […] physical rootedness in the countries of their birth, the stateless are nonetheless forcibly displaced. Their peculiar form of noncitizenship displaces them in situ as they lack the right to choose to belong to the specific communities within which they were born and raised’.
Overall, the case of the Dominican Republic is also a clear demonstration of the problem of ‘racial discrimination in access to nationality’ in certain countries, as prohibited by Article 5 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.
Author: Dr. Olivier Vonk